Stewart v. Kelly

The question for decision is whether appellant wilfully misconducted himself while operating his own automobile, accompanied by a favorite friend as his guest. The

Prior to March 28, 1943, the parties had been acquainted for thirteen years. Since March, 1940, their mutual fondness had been manifested by their rides together in appellant’s automobile several times weekly. She had never operated a car after meeting appellant. On the day last mentioned he called upon the lady at her home in Los Angeles and invited her to join him in an excursion to Long Beach in his sedan of the vintage of 1941. They traveled south on Figueroa Street, a four-lane concrete highway from the city for the 16 miles or more to the scene of the collision. In that vicinity a row of telephone poles, about 125 feet apart, stood four feet from and parallel with the pavement. The speed of the vehicle was estimated by respondent to have been about 45 miles an hour. It was a “bright beautiful sunny afternoon.” There was no visible traffic. As they proceeded southerly along Figueroa two incidents occurred, the evidence of which must supply the proof of appellant’s wilful misconduct, if any. (1) At one time in discussing his foreman, he removed his right hand from the wheel to demonstrate how he would like to “bop” the foreman’s head. As he did so his automobile swerved from the paved area onto the soft shoulder of the boulevard. Respondent requested him to decelerate his speed, keep his hand on the wheel and his eye on the road. The driving then continued in a normal manner. (2) Before they had gone not to exceed a mile after the “hoping” demonstration, and while they were conversing, respondent took a cigarette from her purse and pressed the Chevrolet’s automatic lighter with her left hand. Having held it in place longer than appellant deemed safe for the device, with his right hand he seized her wrist, jerked it out and angrily demanded to know whether she was trying to burn out the wires. Before respondent had answered the Chevrolet swerved onto the shoulder and collided with a telephone pole, causing respondent’s injuries.

The action of a court in granting a new trial will not be disturbed in the absence of a clear showing of manifest abuse of discretion. (Estate of Wall, 183 Cal. 431 [ 191 P. 687 ]; Locke Paddon v. Harris, 219 Cal. 665 [ 28 P.2d 669 ].) But a motion for a new trial may be granted only when the

Turning from philosophy to stare decisis, we find that our courts have with accurate phrase defined the true meaning of wilful misconduct. It is intentionally failing to do that which should be done under circumstances disclosing knowledge that an injury to a guest will probably result. (Turner v. Standard Oil Co., 134 Cal.App. 622 , 626 [ 25 P.2d 988 ].) It is “ conduct of a quasi-criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its possible consequence. ’ ’ (In re Burns, 218 Mass. 8 [ 105 N.E. 601 , Ann.Cas. 1916A 787].) Wilful misconduct depends upon the facts of a particular case, but necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom, coupled with a conscious failure to act to the end of averting injury. (Porter v. Hofman, 12 Cal.2d 445 [ 85 P.2d 447 ]; Norton v. Puter, 138 Cal.App. 253 [ 32 P.2d 172 ].) The mere failure to perform a statutory duty is not, alone, wilful misconduct. (Meek v. Fowler, 3 Cal.2d 420 [ 45 P.2d 194 ].) Such failure amounts to simple negligence only. While the word “wilful” implies an intent, the intention thereby referred to relates to the misconduct and does not mean merely the unsuccessful attempt to do a lawful act. Every act of a motorist, even though it results in an accident, is intended. But because he fails successfully to perform as he intended, or accidentally veers his car from his purposed course, such failure of his attempt to do an act, proper or improper, does not constitute the wilful misconduct contemplated in the guest statute. In the recent case of Fiske v. Wilkie, 67 Cal.App.2d 440 [ 154 P.2d 725 ] in which it was held that the injuries of the guest resulted from negligence, the court observed that there was no evidence of “an inten

In Porter v. Hofman, supra, the facts parallel those here under consideration. Defendant while proceeding at 45 miles per hour turned her head while still holding the wheel to observe the conduct of two guest children on the rear seat. She lost control and the car skidded off the highway. She was innocent of wilful misconduct not only because she was conscious of no peril from her failure to look straight forward but also because she was not conscious of a failure to attempt to avert an injury. In the instant case there is not a scintilla of evidence that would reasonably warrant the inference that appellant was conscious of either a peril to be apprehended from his act or of a failure to attempt to avert an injury to respondent. On the contrary, from the zeal he displayed in encouraging her recovery by his visits with her during her convalescence, it must be concluded that he would have forcibly attempted to avert injury to her had he entertained an instant’s fear for her safety.

It is contended that defendant’s behavior was wilful misconduct because after he had swerved from the pavement a short time prior to the collision he had been reproved by plaintiff for having taken his hand from the wheel. But such act at its worst was evidence of neither a wicked wish, nor wantonness, nor gross negligence. It was no more than an ordinarily negligent act of the variety frequently committed by motorists of discretion and caution. If holding the steering wheel by both hands be deemed the standard of good conduct on the highway, appellant’s act in either instance could have been no worse than the act of shifting gears or of opening his

The order is reversed with instructions to deny the motion.

McComb, J., concurred. Wood (W. J.), J., concurred in the judgment.

Respondent’s petition for a hearing by the Supreme Court was denied April 19,1945. Carter, J., voted for a hearing.