Opinion
Hearing Granted by Supreme Court Oct. 22, 1936.
Appeal from Superior Court, Los Angeles County; Elliot Craig, Judge.
Action by Dick R. Parsons against Leo Fuller. From an adverse judgment, the defendant appeals.
Affirmed.
COUNSEL
C. A. Pinkham, of Los Angeles, for appellant.
Hedley Richmond and Welburn Mayock, both of Los Angeles, for respondent.
OPINION
DESMOND, Justice pro tem.
Upon the ground of insufficiency of the evidence, defendant appeals from a judgment awarding damages to plaintiff in a jury-waived trial.
Defendant, accompanied by plaintiff as his guest, started in his automobile for Boulder Dam, leaving Los Angeles in the morning of November 29, 1934. They were accompanied by a man named Liston and after a little while by an unknown "hitch-hiker." Defendant traveled at a speed ranging as high as 65 miles per hour between Los Angeles and Ontario, where the party stopped for breakfast. Plaintiff complained of this fast driving before they left Los Angeles. "I noticed how fast he was going and I told him, I said, ‘Don’t go too fast. This is a pleasure trip. It makes me nervous. I would appreciate it if you drove slower.’ He said, ‘I am going to, Dick. I am not going to drive very fast.’ I said, ‘That is fine and dandy,’ but he continued doing it." After breakfasting in Ontario, "I came out of the restaurant to get back in the car and I said, ‘Leo,’ I said, ‘you are driving too fast. It makes me nervous. I am not enjoying the trip. I would rather go back to Los Angeles than go so fast, but if you will drive slower everything will be fine.’ I said, ‘When I left home I told you I wouldn’t go over 45.’ I said, ‘I won’t complain at 45, but anything over that speed makes me too nervous.’ He said, ‘I won’t go over 45."’
Notwithstanding this promise on the part of the defendant, he continued to drive thereafter occasionally at a speed estimated by plaintiff as 65 miles per hour, and at 60 miles per hour, according to his own admission. Plaintiff testified that he protested several times and finally, when nearing the summit of the grade extending through Cajon Pass, saw a sign 4 feet by 4 feet in the highway approximately one-fourth to one-half mile ahead. At that time, plaintiff testified, defendant was traveling about 65 miles per hour.
"Q. Did you or did you not call attention--call Mr. Fuller’s attention to the sign at that time?
A. I did.
"Q. What, if anything did you say to him?
A. I noticed the speed he was going. I could see the speedometer. I said, ‘Leo, you are going too fast.’ I said, ‘You see that sign down the road?’ He said, ‘Yes.’ I said, ‘For God’s sake, get over to this side of the line. You won’t make the turn.’ He said, ‘Everything will be all right.’
"Q. From that time on did he increase or decrease the speed of this car?
A. Increased it.
"Q. At the time you brought the sign to his attention was he traveling on the righthand or lefthand side of the pavement?
A. He was straddling the white line down the center of the boulevard.
"Q. From the time that you brought it to his attention and he stated he would and everything was going to be all right and speeded up, will you describe what occurred from that time on to the accident? A. Well, at the time I called his attention to the sign, the way I recollect it, it was only a few seconds until he was at the sign. To keep from running over the sign he guided his car to the right and the front wheels over onto the gravel on the side of the road and he started to skid and he turned loose of the steering wheel and threw both arms that way (indicating) locked around his head, and Mr. Liston did the same thing, and the man in the back seat with me did the same thing, and we went over the bank, and that is about all I know.
"Q. At the time you brought the sign to his attention you were driving some 60 miles an hour or better to the time you approached the sign and he endeavored to whip around it, did he increase his speed? A. Increased."
There was no contradiction of this testimony, except that defendant estimated that he dropped his speed from about 60 miles per hour to between 45 and 50 miles per hour. Mr. Liston testified that he continued at "Practically the same speed. He didn’t slow down when Parsons told him about the sign, he kept on going. * * * Well, we come around that sign and hit that soft gravel, the car glided right out through the country, and a fellow told me it turned over four times.
"The Court: No. Just what you recall.
"Q. By Mr. Mayock: You remember you glided out through the country and through the air?
A. Well, through the air, through the air, and after the first hit I don’t know any more.
"Q. Did you examine afterwards where the first--where the car hit the first time after leaving the highway?
A. 60 feet down.
"Q. It came to a complete stop how far down? A. Approximately 85 feet."
Upon these facts appellant contends that the court was not warranted in finding that the injuries suffered by respondent were proximately caused by the willful misconduct of appellant. Under section 141 3/4 of the California Vehicle Act, as enacted in 1929 (St.1929, p. 1580) recovery might be had for injury or death proximately resulting to a guest passenger "from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle." The Legislature of 1931 (St.1931, p. 1693) amended this section by striking out the words "or gross negligence," and since then the courts have been called upon frequently to determine where the dividing line lies between willful misconduct and gross negligence. Meek v. Fowler, 3 Cal.(2d) 420, 45 P.2d 194; Howard v. Howard, 132 Cal.App. 124, 22 P.2d 279; Walker v. Bacon, 132 Cal.App. 625, 23 P.2d 520; Turner v. Standard Oil Co., 134 Cal.App. 622, 25 P.2d 988; Gimenez v. Rissen (Cal.App.) 55 P.2d 292; Candini v. Hiatt, 9 Cal.App. (2d) 679, 50 P.2d 843; Lennon v. Woodbury, 3 Cal.App.(2d) 595, 40 P.2d 292. All these cases, and others bearing on the same question, we have read, including the recent cases cited by appellant in his reply brief: Weir v. Lukes (Cal.App.) 56 P.2d 987; Bartlett v. Jackson (Cal.App.) 56 P.2d 1298; McLeod v. Dutton (Cal.App.) 57 P.2d 189; Horn v. Volko (Cal.App.) 57 P.2d 175, and Hall v. Mazzei (Cal.App.) 57 P.2d 948. It is unnecessary, for present purposes, to attempt to summarize these opinions or to differentiate one from the others; rather, we shall refer to the language in Sanford v. Grady, 1 Cal.App.(2d) 365, at page 371, 36 P.2d 652, 655, 37 P.2d 475, as sufficiently justifying the court’s finding in the instant case.
"‘Willful misconduct’ is defined in the case of Norton v. Puter [138 Cal.App. 253] 32 P.2d 172, 174, in which case a hearing was denied by the Supreme Court, as follows:
"‘Willful misconduct depends upon the facts of a particular case, and 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. Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510, 512; Olson v. Gay, 135 Cal.App. 726, 27 P.2d 922; Walker v. Bacon, 132 Cal.App. 625, 23 P.2d 520; Howard v. Howard, 132 Cal.App. 124, 22 P.2d 279. Webster’s New International Dictionary, p. 1379, defines misconduct as "wrong or improper conduct; bad behavior; unlawful behavior or conduct; malfeasance." 40 C.J., p. 1221. Willfulness necessarily involves the performance of a deliberate or intentional act or omission regardless of the consequences. In Helme v. Great Western Milling Co., supra, it is said:
"""Willful misconduct’ means something different from and more than negligence, however gross. The term ‘serious and willful misconduct’ is described by the Supreme Judicial Court of Massachusetts as being something ‘much more than mere negligence, or even gross or culpable negligence,’ and as involving ‘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 probable consequences.’ In re Burns, 218 Mass. 8, 105 N.E. 601, Ann.Cas.1916A, 787. The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. Smith v. Central, etc., Ry. Co., 165 Ala. 407, 51 So. 792.""’
We believe that the court properly emphasizes knowledge or appreciation "that danger is likely to result." To us it seems clear that one who, while driving an automobile, knowingly flirts with danger and, without necessity or emergency compelling him, "takes a chance" on killing or injuring himself and others, who may be so unfortunate as to be riding with him, is guilty of willful misconduct.
The judgment is affirmed.
We concur: YORK, Acting P. J.; DORAN, J.