Hastings v. Serleto

This action was instituted by the minor plaintiff through her guardian ad litem, to recover damages for personal injuries sustained by her while she was riding as a guest in an automobile driven by the minor defendant Frank Serleto, Jr. Frank J. Serleto and Gertrude M. Serleto, parents of the minor defendant, having signed and verified his application for a driver’s license, were also joined as parties defendant.

Trial before a jury resulted in a verdict in favor of plaintiff for the sum of $5,000 against the minor defendant and for a like amount against his parents. From the judgment entered upon such verdict, defendants prosecute this appeal.

The evidence as reflected by the record shows that on the evening of August 30, 1942, the minor plaintiff, then of the age of 14 years, was seated in a confectionery store consuming a drink of Coca-Cola. The minor defendant and his companion, Wilkie Richardson, had spent the afternoon from about the hour of 3:30 o’clock in a bowling alley in Westwodd Village. The minor defendant had under his control and was driving a 1938 Buick Club coupe automobile. About 7:30 o’clock in the evening the minor defendant and his companion entered the confectionery store. The defendant was unacquainted with plaintiff, while Wilkie Richardson had a slight acquaintance with her. At the time of the accident the minor defendant was 18 years of age and his companion was approximately 20. Plaintiff accepted an invitation to go for a ride in the automobile with the two young men. Shortly after embarking on the trip a stop was made and some beer

The accident occurred on Mandeville Canyon Road in the city of Los Angeles, which road branches off from Sunset Boulevard and leads into, but not through, the Santa Monica Mountains. It is a narrow, winding road, 23 feet wide. The place where the accident occurred is approximately three miles from Sunset Boulevard and is about ten blocks from where Mandeville Canyon Road ends.

According to the testimony of two police officers, they, in answer to a call, travelled to the scene of the accident where they found the Buiek automobile, driven by the minor defendant, against a tree, about seven feet to the east, or right, of the edge of the pavement. The tree had several trunks branching from the ground. The trunks rise at an angle. The automobile had hit the tree and the angle of the trunks. The momentum of the vehicle and the angle of the tree-trunks had buried in the ground the front end of the car, including the knee-action units and the oil pan, clear back to the transmission. The steering wheel had gone through the windshield just below the top edge. The entire front end of the vehicle

The canyon in which the accident occurred is steep-walled and very narrow at the scene of the impact. On the night in question the canyon was very dark, the last street light having been passed about a mile prior to the collision. There were other vehicles on the canyon road that night, and as to curves, the road is substantially the same from its inception at Sunset Boulevard. A police officer testified that while making an inspection at the scene on the day following the accident he observed tire marks and tire burns leading from the scene of the impact back to a point 250 feet from the point of impact. At a point 59 feet from where the automobile came to rest it had left the highway on the driver’s right side, climbed an almost perpendicular bank, slid along the bank sideways and then came to the level portion of a garden and on to the final impact. According to the police officer, the tire burns observed by him indicated that the vehicle was driven at a high rate of speed and while advancing forward was careening or swaying to the right. It is also in evidence that defendant driver knew that the road upon which he was driving was a narrow, winding mountain road. He had been over this road before, he was familiar with the fact that the turn where the accident happened was a double turn and he knew that the paved highway ended a short distance from where the collision occurred and that the road itself terminated entirely about 10 blocks ahead. He was familiar with the fact that there were trees on both sides of the road, close

The evidence shows without conflict that there was no quarrelling between any of the parties prior to the accident, that there had been no arguments between any of them nor any acrimonious discussion. They were all friendly toward each other up to the instant of the accident.

The minor defendant driver testified that at the time his vehicle ran off the road he was driving at a speed of about 35 miles per hour.

With reference to the time just preceding the happening of the accident, the minor plaintiff testified she did not pay any attention to the speed of the car until just prior to the happening of the accident when, she testified, she “was afraid” of the maimer in which the minor defendant was driving. In that connection the record reflects the following: “Q. What were you doing? A: I was busy with Wilkie. Q: You were in his embrace, were you? A: Yes, sir.”

In describing the events leading up to and at the time of the accident, the minor defendant testified “Well, we got almost up to the 3100 block and when we were entering near to the point, I turned my head for a second to see what Geraldine and Wilkie were doing and at that moment I went off the road, and Wilkie shouted, ‘Watch out, Francis. There is a tree,’ but I was on the shoulder, in the dirt, and when I turned the wheel nothing happened. The car just kept sliding toward the tree, and that is all I remember.”

The first contention made by defendants on this appeal involves the issue of whether the evidence is such as to warrant a finding of wilful misconduct so as to make the driver of the guest car, or those legally liable for the conduct of such driver, answerable in damages under the provisions of section 403 of the California Vehicle Code.

Various definitions of the phrase “wilful misconduct” as used in our so-called guest statute, appear in the many cases wherein there arose occasion to consider the same. In the case of Meek v. Fowler, 3 Cal.2d 420 [ 45 P.2d 194 ], our Supreme Court adopts as satisfactory the definition in Turner v. Standard Oil Co., 134 Cal.App. 622 , 626 [ 25 P.2d 988 ], wherein it is said that “ ‘wilful misconduct,’ within the meaning of this statute, may then be defined as intentionally doing something in the operation of a motor vehicle which should

“While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. [Italics ours.] It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence and that this misconduct must be wilful. While the word ‘wilful’ implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result. [Italics ours.] ”

While it is true that the mental state of the driver is extremely important and that there must exist in the mind of

With reference to what actions, behavior and conduct amounts to wilful misconduct, we think it may fairly be said to envisage something more than ordinary or even gross negligence, but less than the conventional intentional tort such as trespass, assault and battery. Existing as it does in the shadowy realm between the two well established classes of so-called ordinary negligence and intentional wrong doing, the various terms which have from time to time been used to describe conduct which falls within that intermediate zone adds to the difficulty of applying the rules governing wilful misconduct to a given set of facts. We are impressed that in the consideration of cases arising out of section 403 of the Vehicle Code the interpretation to be given actions and conduct of a defendant must turn on the circumstances of the individual case, and that the decisions passing upon facts deemed sufficient or insufficient to sustain a verdict or judgment can be of little assistance other than to announce the definition of the terms and phrases used in the statute. For

We, therefore, conclude that a defendant driver is guilty of wilful misconduct if he intentionally does an act with wanton and reckless disregard of its possible result. Vehicle Code section 505 defines reckless driving as the driving of a car “in ... a wilful or a wanton disregard for the safety of persons”; and in the case of People v. Young, 20 Cal.2d 832 , 837 [ 129 P.2d 353 ], the Supreme Court approves of the conclusion reached by the superior court, sitting as an appellate tribunal, in People v. McNutt, 40 Cal.App.2d Supp. 835 [ 105 P.2d 657 ], that reckless driving and wilful misconduct as specified by the Vehicle Code are the same. Furthermore, it has been stated that: “The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him. (Restatement, Torts, see. 500).” In the case of People v. Young, supra, at page-837, the Supreme Court holds that there is no substantial difference between the description “wilful or wanton” and “reckless.”

Therefore, the question of whether' the defendant driver herein intentionally drove his automobile with a wanton

In the case with which we are here concerned, we feel that both queries must be answered in the affirmative. In the instant case we are confronted with the spectacle of a driver who is acquainted with the road over which he was driving, a road that he knew was a narrow, winding mountain road, which led into but not through the mountains. He was aware that the turn where the accident happened was a double turn and that the paved highway ended at about the scene of the disaster, while the road in its entirety ended about ten blocks ahead. He knew there were trees on both sides of the road close to the edge of the highway; that but a short distance from the scene of the accident the road was divided with a large tree standing in the middle. The driver was aware of the fact that the canyon was steep-walled and that he had passed the last street light and was traveling in a canyon that was very dark. That he had knowledge of the presence of other vehicles on the road is shown by the fact that he had passed two or three within the distance of a few miles. Possessed of this knowledge and after having consumed some intoxicating liquor, defendant driver drove his car first off the left side of the road, where he barely missed striking a lafge tree, then off the right side of the road. His car was driven in such a manner that it climbed up an almost perpendicular bank, slid along sideways, then on a garden for 59 feet before striking a tree with force and violence coneededly tremendous. The speedometer on the car, after

Appellants contend that the only recklessness, if any, shown on the part of defendant driver was the speed of his vehicle and that, standing alone, is not sufficient to sustain a charge of wilful misconduct. However, of necessity the question of speed must be considered in connection with the type of the highway on which the speeding vehicle travels; the width of such highway, its surface and the presence or absence of traffic upon it. Then, too, there is the factor of visibility. In the instant case the car was not only traveling after dark in the manner hereinbefore referred to, but was driven in extreme darkness through a winding and walled "canyon. When considered in relation to these other factors, mere speed may amount to wilful misconduct because such driving under the mentioned conditions could reasonably be said to be in wanton and reckless disregard of both the probable and possible results that would ensue.

It is true, as contended by respondents, that there was no animosity of feeling or "acrimony of conversation or actions on the part of defendant driver and either of his guests, but wilful misconduct may exist without the presence of animus or ill-feeling. It may be motivated by what is referred to in Rawlins v. Lory, 44 Cal.App.2d 20 , 24 [ 111 P.2d 973 ], as “skylarking” or indulging in antics or the cutting of capers with an automobile. Or it may be occasioned for the sake of the thrill which it produces and with reckless indifference to consequences.

Appellants further contend that the principal and

As a second ground for reversal of the judgment herein, appellants urge that the trial court refused to give the jury certain instructions tendered by them at the trial on the subject of wilful misconduct and defining the difference between gross negligence and wilful misconduct. It would unduly prolong this opinion to here set forth the proffered and refused instructions. Suffice it to say that they set forth recognized abstract principles of law governing wilful misconduct ; defined ordinary and gross negligence; distinguished such forms of negligence from wilful misconduct; and set forth the line of demarkation between the two forms of negligence and what is known as wilful misconduct. By the refused instructions the jury would have been advised that a charge of wilful misconduct puts in issue the state of the defendant driver’s mind; that the violation of a statutory duty does not of itself establish wilful misconduct; that ex

Examination by us of the record herein leaves us with the belief that the court fully and fairly instructed the jury upon all of the issues raised by the pleadings and presented by the evidence. The jury was explicitly instructed that under the law of this state a guest in an automobile driven by another cannot recover damages for injuries sustained when such driver fails to exercise ordinary care; that in order to recover damages the guest must establish by a preponderance of the evidence that the injuries were occasioned by the driver’s intoxication or by his wilful misconduct. The jury was advised that the plaintiff did not contend that her injuries were the result of any intoxication on the part, of the defendant driver. The court then correctly defined for the jury what is meant by the phrase “wilful misconduct”; that excessive, unreasonable or imprudent speed “does not in and of itself show that the driver was guilty of wilful misconduct”; that unless the speed under all the circumstances, was so excessive as to make it evident to a reasonably prudent person that danger of injury to the guest was a real probability, then such speed would not amount to wilful misconduct. The jury was also instructed that the mere fact that the defendant driver had consumed alcoholic beverages prior to the happening of the accident is not sufficient in and of itself to prove that the defendant is liable; that the intent which is a necessary element of wilful misconduct, as referred to in other instructions, is not a mere intent to commit an act, but the intent must go to the misconduct. While the court did not, in the language suggested by defendants, admonish the jury as to the difference between ordinary and gross negligence and wilful misconduct, it did clearly and understandingly define for the jury what constitutes wilful misconduct, which was the only issue before them. When it is remembered that instructions should not be considered singly, but in their entirety, we have no hesitancy in saying that the jury was clearly, understandingly and unerringly admonished, and must have understood, that before they could find defendant driver guilty of wilful misconduct they must

Appellants next complain of an instruction given by the court wherein the jury was told that “a driver is charged with knowledge of the probable consequences of his conduct, if such consequences would have been apparent to any person of ordinary prudence and intelligence. ’ ’ In another instruction the jury was advised that “in order that an actor’s conduct may be classed as reckless or wilful, it is not necessary that he himself should recognize it as being extremely dangerous. His inability to recognize the danger may be due to his own reckless temperament, or to the abnormally favorable results of previous conduct of the same sort.” We fail to perceive wherein the challenged instructions constituted serious or any prejudicial error which militated against the substantial rights of the defendants. The latter apparently base their attack upon the quoted instructions on the ground that they measure the required standard of defendant driver’s conduct on the basis of what would be apparent to the ordinary, careful and prudent driver. Appellants’ claim in this regard cannot be sustained. For the same reason that the law prescribes a standard for measuring the conduct of people in determining whether they are guilty of ordinary negligence, there must be a standard to measure the conduct of a vehicle driver charged with wilful misconduct, to determine whether such conduct was of the character contemplated by section 503 of the Vehicle Code. Of necessity that standard must consist of a comparison of the conduct of the driver in question with that of the average man, or to use the phrase so familiar to us, “the ordinary, careful and prudent man” situated as the defendant driver was, seeing what he saw and knowing what he knew. Instead of misleading the jury as

For their next ground of appeal appellants contend that the court erred to their prejudice in permitting a police officer to testify to an experiment allegedly made by him and to express his opinion as to speed, based upon such an experiment. In that connection the record reveals the following: “Q. (By Mr. Spaulding, attorney for plaintiff) You made some experiments up there as to how fast a car could make that turn and leave tire-burns? A. I drove my police car around these curves, yes, sir. Q. And how fast did you go around these curves? Mr. Parker; I object to demonstration evidence as incompetent, irrelevant and immaterial. It does not tend to prove or disprove any of the issues in this case. The weight of the cars was not the same, the condition of the highway was not the same, dampness, and so forth. It is not proper evidence. The Court : I think with that evidence he may then proceed to testify as to the other matters involved. I think possibly the evidence along that line may tend to a little confusion, but having tried it, he is in a position, with what he has testified to, to testify to the ultimate, so he can tell us, from his skid-marks. You can go into that matter of the brush-marks. (Emphasis added.) By Mr. Spaulding (continuing) : Q. From the brush-marks you found there, and the evidence of the collision of the tree and the automobile, which you saw, are you able to express an opinion as to the momentum, or speed of the car, at that turn? (Emphasis added.) Mr. Parker: If the Court please, I object to that

It is at once apparent from the foregoing that the opinion of the officer was not finally asked for nor based on the result of the experiment he made with an automobile, but was founded upon the presence at the scene of the accident of certain physical facts, viz., the brush-marks and the tree with which defendant driver’s vehicle collided. The objection, therefore, went more to the weight than to the admissibility of the questioned testimony.

The next contention made by appellants is that prejudicial error was committed by the trial court in permitting the plaintiff, over defendants’ objections, to express her opinion or impression as to the speed at which the automobile in which she was riding traveled. In that regard it appears that after, plaintiff had testified that she paid no attention to the speed of the automobile until just before the impact, when she became apprehensive and afraid, she was asked whether or not she had any opinion as to the speed of the automobile at the point where she heard her fellow passenger exclaim “Slow down”; to which interrogatory she answered in the affirmative. Objection, made on the ground that no proper foundation was laid, being overruled, the witness testified “I should say sixty-five (65) or seventy (70).” She was then asked “That was your impression at the time?”, to which she replied “Yes, sir.” While the testimony in question was probably entitled to little weight, nevertheless we cannot say that its admission for what it was worth constituted reversible error because the plaintiff had previously testified that just prior to the accident “and the next thing I noticed, we were going very fast. I was afraid. ...” She also testified that she was aware of the fact that they were

Again it is contended that the court committed prejudicial error in permitting the plaintiff to show that none of the defendants visited her after the accident. While the minor plaintiff was testifying, she was asked the question “Now, Miss Hastings, you say you had never seen this Seríete boy before. Have you ever seen him since, until today ? ’ ’ An objection was interposed by defendants on the ground that the interrogatory did not tend to prove or disprove any of the issues in the case, and was sustained by the court. Plaintiff’s counsel thereupon urged that the testimony was admissible as tending to show the attitude of defendant driver at the time of the accident. After some discussion, the court stated “I will receive it with the right on the part of defendants to move to strike later if he chooses.” Thereupon the minor plaintiff was permitted to answer that she had not seen the defendant driver since the accident except upon one occasion when she observed him drive by her place of residence on a motorcycle. This was followed by the question “Have you ever seen his parents since?” Timely objection on the part of defendants was overruled and the witness answered “No, I have never seen his parents until today.” Although the trial judge admitted the testimony subject to a motion to strike, no such motion was at any time made by defendants.

The rulings complained of were erroneous. We are unable to perceive or understand wherein or how this evidence could have any proper bearing upon the legal rights of the parties involved. Undoubtedly, it is proper to interrogate one

The next assignment of error involves a ruling of the trial court by which the defendants were denied the right to show that the third occupant of the automobile, Wilkie Richardson, who uttered a warning to the driver a moment prior to the accident, had not previously made any protest or offered any criticism of the manner in which the vehicle was being driven. Wilkie Richardson was not called by either side as a witness at the trial. The record indicates that while the minor plaintiff was testifying as a witness she was asked on cross-examination “Did Wilkie make any complaint? You said you didn’t, but now I am inquiring about Wilkie.” An objection to the question was sustained. Thereupon, defendants offered to prove that Richardson “made no protest and did not criticize in any manner the driving of the automobile the evening of the accident at any time prior to the

Appellants contend that Richardson’s failure to protest against the manner in which the minor defendant was driving until the former uttered a warning just prior to the accident, would tend to show that the automobile had been driven in a safe and prudent manner up to a moment before the crash; and that if the passengers thought the vehicle was being driven in a careful manner then the driver of the automobile, who was likewise of the same frame of mind, could not be charged with wilful misconduct. The claim is without merit. Plaintiff had testified that she made no protest during the ride and certainly Richardson’s failure to make audible protest was not indicative of nor would it tend to prove what he “thought” of the manner in which the vehicle was being driven.

Finally, appellants urge that respondent’s counsel was guilty of prejudicial misconduct in asking the minor defendant driver if he had had previous accidents and in eliciting from him testimony that he did have another accident subsequent to the one involved in this litigation. In that respect the record shows: “Q. You have had accidents before, up that Canyon, haven’t you? A. No. Q. You have had no accidents before ? A. No, not one. Mb. Pabkeb : If the Court please, I object to that as irrelevant and immaterial. The Court : Well, he just asked if he has had accidents. Overruled. Q. You have had some since, haven’t you? A. I have had one since that. Q. You ran into an automobile on the road some where? Mr. Parker: Objected to as irrelevant and immaterial. The Court: Sustained.”

It is noteworthy that when the question was asked as to previous accidents no objection was made thereto by defendants’ counsel until after the answer was given, and no motion was offered to strike the answer given. Then when the question was asked as to accidents subsequent to the one here involved, no objection whatever was made. But when plaintiff’s counsel asked “You ran into an automobile on the road somewhere?”, an objection by defendants’ counsel was promptly sustained by the court. Appellants now contend that plaintiff’s counsel deliberately injected a false issue into

With the record in the condition in which we find it, we must, in connection with the disposition of this appeal, look into the effect of the error of the trial court in admitting the evidence that none of the defendants visited the minor plaintiff after the accident, in the light of the provisions of section 4½ of article VI of our state Constitution, which forbids us to set aside any judgment or grant a new trial unless, after an examination of the entire cause, including the evidence, this court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The phrase “miscarriage of justice,” used as descriptive of that condition of a cause, has no hard and fast definition. We are persuaded that where the record discloses the commission of errors at the trial the appellate court must first find that upon the record it is seriously doubtful that without such errors the judgment appealed from would have been rendered, before a reversal of such judgment is justified. Our duty under the constitutional provision is thus epitomized in People v. Black, 73 Cal.App. 13 , 38 [ 238 P. 374 ], “It is the law that, when applying the provisions of section 4½ of article VI of the Constitution to an entire cause, we must direct a reversal when we are unable to say ‘whether appellant would or

For the foregoing reasons the judgment is affirmed.

York, P. J., and Doran, J., concurred.