3 N.W.2d 496 | Minn. | 1942
The plaintiff was a nonpaying guest in the automobile of defendant, his brother, at the time the accident occurred near Fresno, *317 California, on June 16, 1939. The applicable California guest statute, St. 1935, c. 27, § 403, p. 154, which was in force at the time of the accident, reads as follows:
"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 such vehicle or against any other person legally liable for the conduct of such driver on account of personal injury to or the death of such guest during such ride, unless the plaintiff in any such action establishes that such injury or death proximately resulted from the intoxication or wilful misconduct of said driver."
Defendant, who was called for cross-examination under the statute, explained that he got very tired and "dozed off" and as a consequence drove off the road. Plaintiff was jarred by the car going over some rough rocks before it was stopped. Defendant said that he was driving 35 or 40 miles an hour at the time the accident occurred. He also said that some miles before he reached the point of accident he felt sleepy and plaintiff offered to drive, but that he considered he could keep awake. Recovery is sought on the theory that defendant was guilty of wilful misconduct in thus losing control of the car.
We take the California statute as construed by the supreme court of that state. In Porter v. Hofman,
" '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. * * * 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.' " The court further said (
Erickson v. Vogt,
The order appealed from is affirmed. *319