Jones v. AyersJones v. Ayers
- Reporters:
- , ,
- Before:
- Ashburn
Constance Adele Jones, a minor, sues through her guardian
ad litem
to recover damages for personal injuries received by her while riding as a guest in an automobile driven by defendant Thomas Eugene Ayers on the evening of January 30, 1960. The car belonged to M. C. Bowers, who had given his son Rudolph Bowers express or implied permission to drive it on the occasion in question, and Rudolph in turn had given permission to his friend, Thomas Eugene Ayers, to drive it and, as stated, Ayers was so engaged at the time of the accident. Both Thomas Eugene Ayers (Tom) and Rudolph Bowers (Rudy) were minors, aged 15 and 17 years respectively, and Ayers had only an instruction permit (Yeh. Code, § 12509). His father, Joseph Ayers, had signed and verified his application for a driver’s license and thus had rendered himself liable for damages for
Plaintiff’s amended complaint contained five causes of action and prayed for judgment against all defendants on each count. The court directed a verdict in favor of each defendant other than Story and hence this appeal taken by plaintiff. The jury exonerated Story of all charges.
The first count of the amended complaint charged mere negligence of Tom, the driver. It was stipulated that plaintiff was his guest in the car. Of course, this count stated no cause of action against any defendant, for section 17158, Vehicle Code, says; “No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or wilful misconduct of the driver.” (Italics added.) See Weber v. Pinyan, 9 Cal.2d 226, 238 [70 P.2d 183, 112 A.L.R. 407] ; Bowman v. Collins, 181 Cal.App.2d 807, 814 [5 Cal.Rptr. 776], It is said in Benton v. Sloss, 38 Cal.2d 399, 403 [240 P.2d 575] : “Section 403 [17158] bars actions against the ‘driver’ of a vehicle or against ‘any other person legally liable for the conduct of such driver.’ The phrase ‘person legally liable’ for the driver’s conduct is clearly intended to cover eases in which the owner is vicariously liable for the driver’s conduct because of the relationship of the parties, as principal-agent, or because of imputed negligence under section 402 [17150]. (Stober v. Halsey, supra [88 Cal.App.2d 660 (199 P.2d 318) ] ; Stephen v. Spaulding, 32 Cal.App.2d 326 [89 P.2d 683].) Section 403 does not limit the common-law liability of the owner of a vehicle for his own negligence as owner.” There was no error in instructing a verdict in favor of all defendants so far as this count is concerned.
The second cause of action alleged wilful misconduct of Tom Ayers, the driver; there was and is no claim of intoxication. As the rule governing a directed verdict is the same as nonsuit, all evidence and all legitimate inferences
Wilful misconduct is thus defined in Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 918 [26 Cal.Rptr. 769, 376 P.2d 833] : “Wilful misconduct means intentional wrongful conduct, done either with knowledge that serious injury to the guest probably will result or with a wanton and reckless disregard of the possible results. (Gillespie v. Rawlings, 49 Cal. 2d 359, 367 [317 P.2d 601].)” It has been repeatedly held that in ere failure to perform a statutory duty such as obeying a stop sign at an intersecting highway is not substantial evidence of wilful misconduct. (See Meek v. Fowler, 3 Cal.2d 420, 425 [45 P.2d 194] ; Porter v. Hofman, 12 Cal.2d 445, 448 [85 P.2d 447] ; McLeod v. Dutton, 13 Cal.App.2d 545, 548-549 [57 P.2d 189]; Francesconi v. Belluomini, 28 Cal. App.2d 701, 705 [83 P.2d 298]; Flannery v. Koch, 103 Cal. App.2d 55, 57 [228 P.2d 580]; Stewart v. Kelly, 68 Cal.App. 2d 122, 126 [155 P.2d 850].) 2 Witkin, Summary of California Law (7th ed.), section 362, page 1563: “Driving at an excessive speed, taking chances at an intersection, inattention to driving, or similar acts, may constitute gross negligence, but do not amount to wilful misconduct. (Meek v. Fowler (1935) 3 Cal.2d 420 [45 P.2d 194]; Howard v. Howard (1933) 132 Cal.App. 124 [22 P.2d 279] ; Forsman v. Colton (1933) 136 Cal.App. 97 [28 P.2d 429]; Ceikin v. Goldman (1935) 5 Cal.App.2d 162 [42 P.2d 719]; Walker v. Bacon (1933) 132 Cal.App. 625 [23 P.2d 520]; Shipp v. Lough (1940) 41 Cal.App.2d 820 [107 P.2d 661]. . ..” But it may be such when coupled with other circumstances. “Although, as stated by appellant, excessive speed alone is not necessarily wilful misconduct, nevertheless, as pointed out in respondents’ brief, ‘speed is an important element to be considered since it, coupled with other circumstances, may constitute wilful misconduct.’ In several reported cases, a speed of 60 miles per hour has been held to constitute wilful misconduct when conjoined with such facts as a damp highway, a misty night requiring windshield wipers, etc. Hallman v. Richards, 123 Cal.App.2d 274 [266 P.2d 812] is an example of such holdings, involving a factual situation not dissimilar from that here presented.” (Harlow v. Van Dusen, 137 Cal.App.2d 547, 550 [290 P.2d 911].)
Viewing the evidence in the best light for appellant the following facts were established at the trial. This was a Saturday evening “double date” in which Tom had with him his friend, the plaintiff, and Rudolph’s guest was Pamela LaPorte—all of them under 18 years. Plaintiff, who was 15 years old, was a guest in the front seat of a 1953 Ford sedan driven by Tom Ayers, who was also 15 years old. The 1953 Ford was owned by M. C. Bowers, and his son Rudolph, who was 17 years old, was the principal user of the car. Rudolph was riding in the back seat with Pamela at the time of the accident. He had entrusted the driving of the car to Tom a few minutes before the accident occurred. The other car involved in the accident was a 1956 Chevrolet sedan driven by Donald Story, who was accompanied by his “date.” The accident occurred when Tom, who was driving the Ford eastbound on Pine Avenue, a dark, two-lane country road, went through a boulevard stop sign without stopping, at Euclid Avenue, a four-lane divided highway, and collided with the
Tom and Rudolph were classmates at high school. Before the day of the accident Rudolph had seen Tom drive a car only on two occasions. On both of these occasions Rudolph was at school when he saw Tom drive up accompanied by one of his parents. Rudolph knew that Tom did not have a regular vehicle operator’s license, but instead had an instruction permit. Rudolph was also aware that Tom’s instruction permit authorized him to operate a motor vehicle only when accompanied by and under the immediate supervision of a driver 18 years of age or over, who himself was licensed to operate the vehicle. Tom’s father, Joseph Ayers, had assisted Tom in obtaining his instruction permit by signing and verifying the application for the permit just 14 days before the accident occurred. During that period of 14 days, he had driven his father’s 1957 Ford pickup truck, under the supervision of his father to and from his father’s business five days a week or a distance of approximately 100 miles. He had driven his father’s Mercury automobile, under the supervision of one of his parents, on four occasions to school.
Before arriving at Pamela LaPorte’s house on the evening of the 30th, Tom asked to drive the car and Rudolph refused to allow him to do so; however, Rudolph did allow Tom to drive a distance of about 2 miles between Pamela’s house and plaintiff’s house. Plaintiff had never seen Tom drive a car before, but shortly after getting in the car Rudolph told her that it was now legal for Tom to drive while he (Rudolph) was in the car.
Rudolph drove the car after leaving the plaintiff’s house, and as they drove eastward through Orange County toward the area where the accident occurred in San Bernardino County, Tom on several occasions asked Rudolph to let him drive the car. As he had done earlier in the afternoon and evening, Rudolph refused to allow Tom to drive. Rudolph testified upon deposition taken before trial that his several refusals to allow Tom to drive were because it was getting dark and he was afraid Tom would get in an accident. In his testimony at the trial Rudolph attributed his several refusals to allow Tom to drive to the fact that he did not want him to do so in traffic. Rudolph continued to drive through the hilly country until he reached a point near Chino, California, where the land flattened out; be there stopped the car
Tom had never been on Pine Avenue or Euclid Avenue; he was driving the 1953 Ford sedan eastbound on a two-lane country road, on a pitch-dark night, approaching Euclid Avenue, a four-lane divided highway. As he approached Euclid at a point approximately 300 feet before reaching the intersection, he observed a sign which was posted on the right-hand side of the road and read “stop ahead.” As he came closer, at a point between 150 and 175 feet from the intersection, the words “stop ahead” were painted on the pavement. He passed another “stop ahead” sign at a point about 75 feet from the intersection. At the trial Tom testified that he recalled seeing the words “stop ahead” painted on the pavement as he approached the intersection and that he saw the boulevard stop sign. In spite of the fact that he saw these warnings, Tom did not stop, but entered the intersection going very fast, according to defendant Story.
Tom testified at his deposition, which was taken approximately six months after the accident, that he had no recollection of any of the events leading to the accident and did not even think he was driving at the time of the accident. At the time of trial Tom testified that he had recovered his recollection four to five months earlier and that he recalled all of the circumstances leading up to the accident, and the accident itself, but that he still did not recall the events immediately following the accident. He did not advise his counsel until the second day of trial that he had gotten his memory back some four or five months earlier.
There was nothing unusual happening in or about the car that Ayers was driving and there was no explanation in the evidence of any reason for his charging at a high rate of speed through three stop warnings that he had seen.
The recent decision in
Goncalves
v.
Los Banos Mining Co., supra,
58 Cal.2d 916, has applied the concept of wilful misconduct in such manner as to be well nigh conclusive in the case before us. In that instance Menezes, the driver of the car in which plaintiff’s decedent was a guest, was traveling at a speed of about 60 miles per hour, 5 miles in excess of the prima facie speed limit. “The stop sign was plainly visible, and when they were over 200 feet from the intersection decedent said to Menezes, ‘Joe, look, there is a stop ahead. ’ Menezes did not look to his right or left as he neared the intersection and did not apply his brakes until imme
M. CV. Bowers cannot be held under Vehicle Code section 17150, “imputing to the owner of a vehicle liability for negligent operation, for, in the absence of a principal-agent relationship between the owner and the driver, the owner is not liable for the driver’s wilful misconduct. (Weber v. Pinyan, 9 Cal.2d 226, 238 [70 P.2d 183, 112 A.L.R. 407].) ” (Benton v. Sloss, supra, 38 Cal.2d 399.)
As there must be a retrial we consider other questions presented upon this appeal which will doubtless arise again upon such new trial.
The third count of the complaint charges negligence of Rudy Bowers in entrusting the driving of the car to Thomas
The court in
Souza
v. Corti, 22 Cal.2d 454 [139 P.2d 645, 147 A.L.R. 861], held that an owner who permits another to drive his automobile impliedly authorizes him to delegate the use of it, such as the driving, to a subpermittee selected by himself, though that be done without knowledge or express authority of the owner, and the owner assumes the statutory liability of a permittor with respect to the negligence of the subpermittee (
The owner of the car involved in the
Souza
v.
Corti
case was Joseph Gigli, who loaned it to his son, Arthur. Arthur, contrary to his father’s instruction that he should not lend the car to anyone else, permitted his friend, the defendant Corti, to drive it in his absence. Through Corti’s negligence an accident occurred and plaintiffs were injured. At page 456, the court said: “The principal question is whether Joseph Gigli, the owner of the Dodge car, is liable in damages for the injuries sustained by the plaintiffs pursuant to the statute above quoted. He contends that he is not liable because he had not given express permission to Corti to drive the car and that permission so to do may not be implied for the reason that he instructed his son Arthur not to lend the car to anyone else.” Reviewing the statute (then
As to the liability of Arthur Gigli, the owner’s permittee, the court held, at page 461: “As to the liability of the defendant Arthur Gigli, the record shows that defendant Corti took possession of the Dodge car for the use, benefit and accommodation and under the direction of Arthur and for the purpose of taking it to Roeca’s for Arthur. Under these circumstances Arthur was the principal and Corti was his agent. The negligence of the latter was therefore imputable to Arthur. ’ ’
The Souza-Corti doctrine of liability of the owner-permittor was restated and applied in Peterson v. Grieger, Inc., 57 Cal.2d 43, 54 [17 Cal.Rptr. 828, 367 P.2d 420].
Benton
v.
Sloss, supra,
38 Cal.2d 399, was a case of negligent entrustment by the owner, a car dealer, to a minor who was a prospective purchaser. Sloss was the owner and Jay the prospect. While he was driving an accident occurred and plaintiff, a guest in the car, was injured. In her action for damages judgment went against both Sloss and Jay. Sloss alone appealed and the judgment was affirmed. Sloss claimed that although Jay was guilty of wilful misconduct he, as owner, was absolved from liability by the guest statute (then
The
Nault
case involved negligent entrustment by an owner to her minor child whose negligent driving resulted in injury to a guest in the automobile. It clearly develops the theory that such negligence is personal and the liability nonstatutory; also that such liability is not affected by the guest statute. At page 267, the court said: “The issue of Mrs. Smith’s negligence was, indeed, a jury question. Section 14607 of the Vehicle Code makes it unlawful for a person to permit an unlicensed minor to operate a motor vehicle; section 14606 prohibits a person from permitting any unlicensed person to operate his vehicle on the highways. ‘ [Violation of the statute by the owner makes out a
prima facie
case against him in favor of a person who has sustained injury through the negligence
The result of all these authorities is this. The owner is liable within statutory limits for injuries inflicted through negligence of his permittee or of a subpermittee who is driving by leave of the original permittee, but such liability does not extend to a guest; one who negligently entrusts the driving of a ear to another, whether the entrustor be owner or original permittee, is liable upon common law principles
In the instant case Rudy Bowers entrusted the car to Tom Ayers, and if he negligently did so and that negligence operated as a proximate cause of injury to plaintiff, Rudy is liable at common law. There is substantial evidence, above recited, that Rudy was negligent in this matter and the granting of a directed verdict as to him was erroneous. His father, the owner, likewise could be held liable for negligence of the subpermittee driver under the doctrine of Souza v. Corti, supra, and Peterson v. Grieger, Inc., supra, except for the fact that plaintiff was a guest in the ear. The court did not err in directing a verdict in favor of M. C. Bowers, the owner.
A fifth cause of action against M. C. Bowers for negligent entrustment of the automobile was voluntarily dismissed by plaintiff.
The fourth count of the amended complaint runs against Joseph Ayers, the father of Tom, and is based upon section 17707 of the Vehicle Code. 3 It will be noted that this liability extends to wilful misconduct as well as negligence, and as heretofore pointed out there is substantial evidence of wilful misconduct. The liability under this section for wilful misconduct extends to a guest. Hence the directed verdict was erroneous as to this defendant.
Much is said in the briefs about the question of agency of one defendant for another and whether it, though an issue drawn by the pleadings, was eliminated by silence of the pretrial order with respect to it. As appears from the foregoing analysis of this ease the question of agency has no significance anywhere except in the matter of Rudy entrusting the car to Tom. That act, according to the
Souza
ease,
supra
(last paragraph of opinion, page 461), made Tom his agent. Of course, that was a legal implication drawn by the court. The pretrial hearing and order are intended to facilitate the trial,
Moreover, plaintiff at the pretrial was given leave “to amend her complaint to state a cause of action against Joseph A. Ayers under Vehicle Code sections 17707 to 17709 and to state a cause of action against M. C. Bowers on the theory of negligent entrustment. ’ ’ This was followed by a new complaint in which the three causes of action of the original pleading were realleged in the same language. Bach of them contained an allegation of agency of each defendant for all the others. This allegation in the amended complaint was denied by defendants and thus the question of agency, if eliminated at the pretrial hearing, was restored to the issues and there was no subsequent pretrial order or amendment thereto which eliminated that issue. (See Posz v. Burchell, 209 Cal.App.2d 324, 334-335 [25 Cal.Rptr. 896] ; Jones v. Burgermeister Brewing Corp., 198 Cal.App.2d 198, 203 [18 Cal.Rptr. 311]; Wickman v. Opper, 188 Cal.App.2d 129, 134 [10 Cal.Rptr. 291].)
The judgment is reversed with respect to all defendants except M. C. Bowers; as to him it is affirmed.
Fox, P. J., and Herndon, J., concurred.
Notes
Different considerations apply to Rudolph Bowers, as will he seen, hut the result is the same.