*1 grants. opin- respectively, by No Angeles, and Los ownership as to the ion, however, expressed or intended is respective cities here involved as between lands private claimants. reached, is unneces- In conclusions herein view by the record. sary questions presented to discuss other discharged, sustained; alternative writ demurrer peremptory and a writ denied. In Bank.December No. 5244. 1938.]
[Sac. HOFMAN, NANETTE al., Respondents, ED et PORTER Appellant. Appellant. L. for
H. Preston and Lilburn Gibson Respondents. Charles Kasch for *2 SHENK, J.The a in dam- plaintiffs judgment obtained Porter, ages injuries for personal plaintiff, the Mrs. sus- to tained a riding when the in she was automobile which skidding pavement. of the on defendant after wet overturned judgment The trial finding was the of the entered to pursuant guilty court' of wilful misconduct. that the defendant was judgment. appealed The defendant from the evi- only question is whether the for determination finding the supports dence of wilful misconduct. Mrs. Porter close friends. Hofman and Mrs. were Mrs. in Hofman a and had occasion to conducted Ukiah business trips Francisco, many frequent drive her car on to San on accompany Porter her. On of which she Mrs. to invited April 19, 1936, Mrs. invited Mrs. Porter to make Hofman along trip a her. Mrs. Hofman also took her such safely seven-year-old arrived in Fran son. The three San completed Early her Hofman business. on cisco and Mrs. they trip April return the the afternoon of 21st commenced Francisco and Healds Somewhere between San to Ukiah. Eugene Walker, a up resident of Ukiah. burg they picked Hofman, in with Mrs. sat the front seat and Mrs. Porter boy sat in the rear seat. and Hofman At young Walker rain, which inter they continued Healdsburg encountered thirty next mittently during the of the miles. The course pavement apparently the wet but slightly twice on car skidded Porter admitted and Mrs. that she not dangerously, not suggested Mrs. Hofman However, that she frightened. speed. and reduce her of road nearer center she drive any speed at time of the that car evidence no hour, and rate was that not maintained miles an exceeded through towns. Numerous curves curves or going around Healdsburg highway between and Ukiah portion of the on danger. safety indication and without of taken were appear the accident—-it does preceding not moment At some boys asked what the Hofman were do when—Mrs. precisely they playing toy were with a air said Porter ing. Mrs. plane. Mrs. of her portion Hofman turned her head a and body a around for look relinquishing Avithout her on hold the steering Avheel. At point this they in travels Avere their about six just miles south They passed Uldah. around slight a curve folloAving grade, per descent on six a cent and straight over a preceding another Mrs. stretch ascent. Hofman there lost ear, control Avhich off the skidded pavement parallel portion dirt betAveen the paved highAvay and a fence. Por distance of about attempted feet bring she hold car and back over, pavement, spun but at the entrance to a lane it turned upright on its top and landed on its four Avheels. It Avas in that evidence similar accidents on that road of the unusual, eight having Averenot pre occurred the six Aveeks ceding involved, prior accident here and a number to that period. dispute. they
The facts are not in But fall far short evidencing must condition Avhich obtain before may in such guilty defendant an action be said to be wilful What is wilful misconduct as used (Stats. section California Vehicle Act 141% *3 93), p. 517, 403, Code, 1935, p. now section Vehicle Stats. has many (See been times. cited in reiterated cases Parsons v. Fuller, 430], (2d) (2d) 8 463 Pac. Hathway, Cal. Jones v. [66 22 (2d) (2d) 681], 316 Pac. App. Cal. and Ceikin v. [70 Goldman, App. (2d) (2d) 162 Pac. ; also, 5 Cal. [42 719] Wright Sellers, App. (2d) (2d) 209].) 25 603 v. Cal. Pac. [78 Fuller, supra, page 468, In at this Parsons v. court approved wilful following definitions of misconduct: misconduct is defined in the case of Norton “Wilful v. (2d) Puter, App. 172], 138 Cal. 253 Pac. as fol- [32 ... lows: “ depends upon particular facts ‘Wilful misconduct of a necessarily deliberate, case, intentional, involves or and wan doing omitting perform acts, in or to with knowl ton conduct fact, edge culpable of the on the of the appreciation or danger likely (Helme result person, that is to therefrom. Co., App. 43 Milling Cal. 416 Pac. Great Western v. [185 ; Gay, App. (2d) ; v. 726 Pac. Olson [27 510] 922] Bacon, ; (2d) 132 625 Pac. Walker v. Cal. [23 520] Howard, App. 124 (2d) 279].) 132 Pac. Howard v. Cal. [22 page Dictionary, 1379, New International defines Webster’s improper or “wrong conduct; be- as bad “Misconduct” 448 (40
havior;
conduct, malfeasance”.
unlawful
or
behavior
per
1221.)
Jur., p.
necessarily
Cal.
involves the
Wilfulness
regard
formance of a deliberate or intentional act or omission
Milling
less
Western
consequences.
of the
In Helme v. Great
“
something
Co., supra, it is said:
‘Wilful misconduct’ means
however,
negligence,
gross.
different from
more than
and
is described
term ‘serious and wilful misconduct’
something
Supreme
being
as
Massachusetts
Judicial Court of
gross
culpable
negligence, or even
or
‘much more
mere
than
quasi
negligence’
involving
and
a
criminal
as
‘conduct of
nature,
doing
something
the intentional
either with
likely
injury
in
or
knowledge
to result
serious
is
disregard
possible conse
of its
a wanton and reckless
787,
(In
Burns,
1916A,
quences’.
re
We not review of need the considera surrounding legislation the enactment tions adoption quoted appro of the definition upon bear All of these considerations priate thereunder. are discussed unnecessary herein. It is length in the cited at cases point language more than to do of the case this emphasize present the fact that the definitions above-quoted Hofman, guilty evidence that Mrs. devoid of if record anything than guilty negligence, more anything, *4 may plaintiffs recovery had under the no be for which Vehicle the California Act. provisions liability of Before knowledge, shown actual or must be its equivalent, there arises peril defendant to be apprehended part to act failure conscious end coupled averting Fowler, supra, 425.) p. v. (Meek injury. Even if it be skidding commenced while that Mrs. Hofman’s assumed
449 turned, head was there is no circumstance in the record dis closing express implied knowledge either or on her that probable injury any guest in the car would follow from part. contrary appears her conduct on theOn that Mrs. safety Hofman was more concerned with the of her son and close than friend otherwise. is here no conscious safety disregard reckless their involved cases plaintiffs upon by such as relied (see Wright those v. Sellers, Hathway, 22 supra; (2d) v. App. Jones Cal. 316 Coogan ; Prod., Inc., Pac. Jackie v. (2d) Industrial 681] [70 Com., App. 750]; Acc. 21 225 (2d) (2d) Pac. Cal. Frank [68 Myers, App. (2d) (2d) ; 16 16 Pac. v. Cal. Candini [60 144] Hiatt, App. (2d) (2d) ; v. Pac. 9 679 v. Cal. Parsons 843] [50 Fuller, (2d) ; 8 (2d) 463 Pac. Cal. Edwards v. [66 430] Bodenhamer, (2d) 7 Cal. App. (2d) 202]; 305 Pac. Gie [46 ; Uhlman, 7 409 App. (2d) (2d) selman v. Cal. Pac. [45 819] Grady, (2d) v. 1 App. (2d) 652, Pac. Cal. 365 [36 Sanford 37 Pac. (2d) 475]; Puter, App. Norton v. 138 Cal. 253 [32 (2d) Pac. ; Gay, App. Olson v. 135 Cal. 726 Pac. 172] [27 Bacon, ; 625, v. 132 (2d) App. Walker Cal. 630 922] [23 (2d) 520]), Pac. led and which to the conclusion therein finding that evidence warranted a wilful misconduct the driver’s turning In another act occurred. case adjust companion, of his sleeping resulting head in the colliding coming truck with a car from opposite direc tion, misconduct, was held not to amount to wilful and judg plaintiff (Bartlett ment for the was reversed. v. Jackson, (2d) App. (2d) 1298].) 435 Pac. Similarly [56 cases, below, other some of are cited the facts failed part of reveal misconduct on the defendants within the approved meaning of definition and the courts unhesitat ingly judgments or reversed orders favorable to plain Fowler, (Meek therein. v. 3 tiffs (2d) Cal. 420 Pac. [45 ; Lukes, (2d) Weir v. 13 App. Cal. (2d) 312 194] Pac. [56 13 ; Dutton, v. (2d) App. McLeod Cal. (2d) 987] 545 [57 (2d) ; Malone, Halter 11 Pac. v. App. Cal. (2d) 189] 79 Solt, (2d) 374]; 8 Pac. Newman v. Cal. App. (2d) 50 [53 [47 (2d) 289]; Goldman, supra; Pac. Ceikin v. Lennon v. Wood (2d) App. (2d) 3 Pac. bury, 292]; Cal. 595 [40 Turner v. Co., 134 App. Cal. Standard Oil (2d) Pac. 988]; [25 Howard, Howard Cal. *5 Mazzei,
279]; see, also, Rail v. (2d) 948].) action. for similar The record in this case calls judgment is reversed. Langdon, J., Waste, J., Curtis, J., Edmonds, J., and C. Houser, J., concurred. only question SEAWELL, J., Dissenting. dissent. The I auto- appeal driver of an
presented on this is whether the injuries damages were liable in for mobile is losing driver control proximate result of acts of the completely in her seat by turning car reason of almost rear seat occupying the guests engage in conversation bed, descending oiled road per a six cent while the car was shoulders, from rain graveled wet twenty feet wide approximately the rate of day, traveling at cloudy judge, with hour, as found the trial forty-five per miles relatively short but skidded warning that the car with all The trial court happened. before the accident time guilty of wil- driver was it held that facts before record evidence is substantial ful judgment, and the trial court findings sustaining disturbed. not be my should opinion, rehearing. for a Seawell, J., voted Rehearing denied. In Bank.December No. 16615. 1938.] A. [L. CLAIR, BUL Petitioner, ST. GEORGIA P. CORDELIA Judge Superior Respondent. LOCK, Court, etc.,