*1 A. No. 22092. In Bank. Oct. [L. 1952.] Appellants, AILEEN MARY WARD al., et v. A. B. JONES al., Respondents. et Mayers L. Richard Lawrence William Steinberg for Appellants.
Ray City Chesebro, Attorney (Los L. Angeles), Gilmore Tillman, Chief Assistant Attorney, Maekay Wendell Lawson, Deputy City A. Attorneys, L. for Respondents. is an SHENK, J. damages This action for wrongful section 377 authorized of the Code of Civil Pro provides cedure.. That the death “when person neglect ... caused act of an other, . . hi's . maintain an action damages heirs causing against the death ...” plaintiffs are the Joseph widow and minor children of Ward, T. complaint, deceased. The amended, later was filed on March appeal judgment 1949. The of dis- missal of the following sustaining general action an order demurrer without leave to amend.
The painter employed decedent was a Department the of Water and Angeles. July Power of the of Los On 12,1948, department he was member of employees a crew of engaged then in painting an electrical transmission line tower. supported high This tower carrying tension wires an elec- potential trical of approximately 130,000 volts. While Ward and employees his fellow engaged were discharge the departmental of their injured by duties he was coming in high contact with a tension wire days and died two later. The employer city the prescribed was and limited by the provisions death benefit compensation of workmen’s laws of state, the city and the party is therefore not a de- fendant in this action. The defendants were employees fellow of the decedent. complaint The alleges that extremely was hazardous any painter
for to work on the transmission line towers when the wires were energized; required: that reasonable care that the current be off painters turned while worked on the towers; that neither painters, planks, scaffolding rigging, nor except of the nonconducting quality, permitted be to come within 10 feet of the energized wires; competent that elec- trical mechanics be stationed at all times between the wires painters working on the towers, painters and that re- quired safety to wear working. belts while so alleged
It is also that none of foregoing precautions the long period had been taken for a prior of time to the accident death; which caused Ward’s that each of the was defendants fact, aware of this in neglect but disregard of his duties employee of department as an “carelessly negli- gently” any steps failed to remedy take to the situation. complaint alleges then that the electrical mechanic assigned job insisted precautions pro- certain protect painters vided dangers from the high of the wires but tension wilful, “in defendant O’Connor negligent'and disregard reckless” safety of the of members crew, adopted practice of said working and did cause painting crew to work in dangerous proximity wires, protection tension without the electrical competent the deceased
mechanics; day that on fatal accident “negligently painting crew that was was a member of the Phillips paint Williams and directed the defendants” high'ten- proximity tower was sion wires. stating necessary damages
A verified for informa- claim 1948, by city clerk tion was filed with the on October allege any plaintiff complaint does not claim widow. The damages defendants presented to or served any they an them, or received no actual notice that brought against prior to the service action would be them in this action. provides: Section 1981 “When- of the Government Code any any ever it is claimed has been or property damaged as the or care- result any public employee occurring during lessness of or officer employment the course of his . . service . within damages after the accident has occurred a verified claim presented writing shall be and filed the officer or with employee secretary legislative body and the clerk or municipality of the . . . ...” *3 plaintiffs It is 1981 the contention of the that section does apply may wrongful to actions for It be death. denied if apply wrongful that section does death cases a to presented sought claim employee verified must be to an to be charged within 90 In after Veriddo v. the accident. Renaud, 35 said, page it was 265 at P.2d [217 647], by Legislature section 1981 the “has extended to public employees, liability per officers and in who incur the government of service, formance protection the of a claims privilege statute and having public the of ex defended at pense damage those suits which are enumerated” in the code. approval This Decker, court cited with the ease of Huffaker Cal.App.2d 254], P.2d in which the defendant city employee by was sued for damages allegedly caused negligent driving an by city automobile owned and driven scope within the of the employment. defendant’s It was held that the plaintiff allege compliance failure of the to provisions with the claim of section 1981 fatal was to cause of action. plaintiffs contemplates only that the contend person injured;
claim on behalf
that an heir under
in no sense be
person
statute can
deemed to
the death
he the
by the
concept is fortified
use of
words
that this
injured;
and
the time
occurred,”
has
thus
the accident
“after
the accident
excluded.
of death as
time
analogous
this
held that
In an
situation
court has
person
is a
of the deceased
within
terms
an heir
In
Burbank,
Arellano v.
death statute.
Cal.
municipality
liability
in a
2d
pursuant
Liability
Public
wrongful death case
Act
1923, p.
(Stats.
675;
Code, 53051),
of 1923
Gov.
was sus
pro
Section
act
under consideration
tained.
there
in
municipalities
cases
should
vided
certain
be liable for
“injuries”
persons
property resulting
to
from
public
holding
condition
In
defective
streets.
that the
city’s liability
for wrongful
statute authorized
death this
page
quoted
approval
at
258 cited and
with
court
from Ben
County,
Kings
A different intent should not be attributed to use of language another same section. An intent to include injuries persons property flowing language read from the the section liability. imposing An intent obligation to exclude the to file injuries may a claim due to such not therefore read from language the similar section 1981 of the Government Code. language plain As that section the used likewise is sufficiently similar to warrant the conclusion Legis- intended it have the meaning lature same in each section. language, referring injuries That property, be all must deemed to inclusive both sections. *4 Arellano case was decided 1939. That sufficient required wrongful is in cases of
claim death been has there (See Cooper County assumed. Butte, after Cal.App 17 516]; Huey City .2d 43 Angeles, Los 137 Cal. ; 48 App. Beeson v. Angeles, Los Cal.App. 993].) P. With placed this construction Legislature upon the section the has not change seen fit to statutory requirements presenting the a claim in death cases. plaintiff
It is contended the that only alleged carelessness,’’ applies “negligence cases of and complaint alleges something word that this more appears allegation thereby one the “wilful” and excludes operation the cause of action from of the section. This con may prevail. alleged tention As above is indicated it by failing proper precautions protect that to take the painting violation, neglect crew the defendants “in and dis regard responsibilities of their various duties as officers and employees Department Power, of said of Water and carelessly remedy negligently any failed to steps take same”; painting the that the deceased a member of a negligently” that crew “was directed the defendants to paint one of As to the towers. the defendant A. J. O’Connor alleged alone it is “in wilful, negligent that and reckless” disregard of the lives and crew, limbs he had followed practice working painting the and did cause his crew dangerous proximity to work in wires; to said tension “practice” and that knowledge, O’Connor’s was with the consent, authority Taking of his direction codefendants. whole, into consideration the as a wherein the same alleged negligence acts to constitute and carelessness on part defendants, the of all of the pleading states a cause of action on meaning based within the of section 1981 and against general would be sufficient as such as demurrer, but the intervention of the claims statute. urged applicable section 1981 is is also It because when death occurs as to this case result presenting time for claim tortious is too uncertain. act presented provides that the claim must be The section within days argued has occurred.” after “accident It causing injury is the occurrence that the “accident” party die more than after causing injury, making compliance thus with the event unnecessary It impossible. here to deter- element the time the word “accident” as found the statute mine whether gave should be held to refer event rise to the namely, jury plaintiffs, deceased, determining the commencement of purpose the statu- plaintiffs tory period. against filed no claim at all Since respect determination in defendants, would not any in this case. resolve issue *5 against attempted cause of action It is concluded 1981 is negligence; that section is based on the defendants comply therewith is fatal. applicable; and failure to that that appear the com- these circumstances it does Under plaint amended to state a cause of action. be could judgment is affirmed.
The J., J., Sehauer, J., Spence, J., and Gibson, Traynor, C. concurred.
CARTER, J.I dissent. imposing There can be no doubt that the various statutes liability wrong- government agencies on include injuries persons property ful death as well as they injury that extend to is inflicted inten- eases where the tionally, wilfully, through gross negligence as as well negligence. statutes, however, The claim do not cover the by subject ably discussed death actions. The Presiding Appeal, Mr. Justice the District Court of White of District, prepared him One, opinion Second Division in an my this court, adopt when ease was before I dissent, as follows: their amended general (herein-
“A demurrer to having complaint) as the been after referred to sustained appealed amend, plaintiffs have from the without leave ensuing judgment wrong- dismissal. The action one for brought by the and minor ful death widow children of by coming Joseph T. Ward. The decedent met his in electric transmission line while contact with tension painting. a tower at an electrical engaged painter as a Department of Water and Power of the substation of the employee depart- an Angeles. The decedent was of Los having vary- employees fellow and the defendants were ment with ing degrees supervision over or connection the work complaint alleged, substance, painting the tower. extremely dangerous painter for a to work on the that it was vicinity high-voltage wires, and that rea- tower required turned off while sonable care that the current be competent on; that there be two electricians such work went any equipment nor present times; painters, at all no nonconducting quality permitted be within except of energized; safety belts they were feet of the wires while defendants, violation, charged used. It employees disregard of as officers and neglect their duties department, carelessly negligently failed to take precautions; such further that defendants O’Connor and Wil- liams, as foreman and assistant foreman of the painting crew, caused an electrical mechanic job removed from the expedite by omitting order to the work precautions sisted the electrical mechanic and thereafter, ‘in willful, negligent disregard and reckless of the lives and limbs of crew, adopted practice members said of work- ing painting and did cause crew to work in *6 proximity wires,’ to said tension and knowledge ‘to the authority pursuant with the consent and to the di- rections of’ the other defendants.
“The demurrer was based ground the sole that complaint allege plaintiffs presented failed to a veri- days fied claim to the within 90 defendants date of the accident. The in this connection contained following allegation: 8, 1948, plaintiff ‘That on October Mary Aileen damages Ward filed a verified claim for written by with the Angeles, California, filing Los State of same Peterson, City City; with Walter Clerk of said damages said claim for specified names and addresses claimants, damages injuries, the nature of the when injuries and where occurred, description and a of the ’ injuries. manner and nature the accident and ‘‘ Section 1981 of the Code reads as follows : Government “ any person injured ‘Whenever it is has been claimed any property or damaged negligence as a result of the or any public employee occurring carelessness of officer or dur- ing employment the course of as a result of his service or or any public property, or condition of defective alleged any to be due or carelessness of officer employee, or within 90 after the accident has occurred writing a verified damages presented claim for shall be employee filed with the officer or and the clerk or sec- retary legislative district, body county, school municipality, or as be. In the case the case of State officer the claim shall be officer and the filed with the ’ Governor.
“Appellants present why, they three reasons assert, the causes of action here involved do not come require- within the ments of the aforesaid section 1981: 1. That an action for wrongful death is not included wording within the of the sec- tion, only which refers to situations where ‘it is claimed any person injured any property has been damaged’; 2. That the section its terms does include eases involv- they contending that misconduct, appellants here ing wilful rather misconduct of action for wilful a cause have set forth not be the statute should negligence; and 3. That than mere employee against an action an include construed to employee. a fellow reversal, appellants assert ground of
“As a fourth in the applicable 1981 should be held though even section city clerk of the filing of a with the action, their claim stant substantial Angeles should be held to constitute city of Los compliance. jurisdictions of the courts of other majority
“The view reasoned, well exceptionally consider as reflected in cases we involved containing language similar to that is that statutes an apply to in the here under consideration do not Supreme wrongful language action for death. Joseph (1944), Glasgow City Court of Missouri St. 412, 416], is illustrative: ‘Un 353 Mo. S.W.2d included, by wrongful act, explicitly less actions for death apply generally statutory provisions it is held that like do where, wrongful especially to an action for This is so death. (and California), as Missouri’ as in ‘the into action, springing action is considered a new cause of first C.J.S., p. (Citing existence at the time of death.’ McQuillin, 688; 6 a; Am.Jur., p. 392, subsection § *7 Annotation, Municipal Corporations, p. 1285, 2890, 12; n. 1059.) 64 A.L.R. Spangler’s “The of Administrator case Middles- of (1945), Ky. 414],
boro S.W.2d involved a statute providing that ‘No action shall be against any maintained city ... ninety days . . . unless notice be filed within damage occurrence for which is claimed. . . .’ The court pointed out that where an party there dies, the necessity prompt for usual examination to determine exact ex- injuries inquest is obviated and the pro- tent coroner’s city ample purpose vides the with notice for the of elimi- nating the future for condition which caused further, pointed Kentucky the death. as But out court, required days filed notice is to be within 90 damages ‘occurrence’ for which The claimed. California Clearly, statute uses the word ‘accident.’ so far as an action personal injuries concerned, for is the words ‘occurrence’ thing—the and ‘accident’ mean the same incident or event causing personal injuries, such as the incident of a col- falling lision of the incident of into an excava- automobiles, case, if tion, etc.) As stated the last cited it were held necessary notice were to maintenance of an action wrongful death, action would be barred where the ‘injury’—that is the ‘accident’ ‘occurrence’ occurred more days than 90 before death. language Supreme Bige-
“The Court Vermont Johnsbury Vt. (1918), v. Town St. A. low appropriate: argued persons here ‘It is . . . is finan- cially injured through the kin death their next of must give they required give they if notice the same as would absurdity physically injured. The were themselves of such logical per- is manifest its If a a construction result. consequence reason, injured is, thereof, son bereft of days injuries and the result his death 21 after the occur- maintained, rence injury, of such no action can be held or kin, statute, under the for the benefit of the next of because given injury, not notice was within 20 of the time of the during injured person yet alive. An all which time the was purpose lawmakers, is to be absurd attributed to consequence always leading must construction to an absurd be avoided.’
“Another case Vermont illustrative of the difficulties that applicable would be involved were the statute held is Eames Town (1882), Brattleboro Vt. person where the half injured died within an hour after the accident. Re- covery sought on daughters, was behalf two minor no claim having The or notice been filed. court said: ‘We think there no room doubt no notice required in this language plain The ease. and the effect of it unmistak- “person injured”, able. as used in the proviso, refers injured in person accident, to the jured pecuniarily, a result of the accident.’
“We
refer
meaning
will
further to the
in section 1981 of
any person
the words ‘whenever it is claimed that
has been
respondents’
injured’
discussing
respect
contentions with
the .applicability
of the statute.
holding typical
“Other cases
inappli
claims statutes
many
actions,
involving
cable
statutes con
taining
language
much broader
than that
involved in the
case, are Diariotti v. Missouri
Ry.
instant
Pac.
(1914),
Co.
*8
865];
Mo. 1
City
Topeka
262
S.W.
Nesbit v.
(1912),
[170
of
166,
765
; McKeigue v.
N.W.
(1885),
“Section Government Stats. 1923, p. 675) provides counties, municipalities and school injuries persons prop- districts ‘shall be liable for erty. City . . In Burbank, .’ Arellano v. 113], expressly ‘injuries P.2d persons’ held that injuries statute, referred to include such as persons by caused to reason of the death of others. Further pointed by respondents, Douglass it is out such cases Angeles, 353], Spencer Los Cal.2d 123 City Calipatria, Cal.App.2d it was recovery provisions held that a could not be had under the of section 53051 a claim is Code unless Government lat- required by code, filed as section 53052 of the same public (Stats. 675), making 1923, p. cities.and other 1“Act of 1923 substantially agencies Now instances. liable for certain incorporated 53051, Code. section Government 756), relating liability, (Stats. 1919, p'. of officers "Act of 1919 incorporated public agencies. of cities and Now other Government Code. filing (Stats. p. 2475), requiring claims with "Act of 1931 agency. body city public legislative Now section clerk of of a Code.” Government *9 766 (as provides 1981),
ter section
does section
‘Whenever it is
person
claimed
injured
that
has been
...
a ..
. claim
damages
shall be . . .
. . .’ However,
filed.
no case has
squarely
been found in which it has been
held that a claim
must be filed under section 53052
arising
death action
under section
Respondents urge
53051.
per-
that since these
(Gov.
tinent statutes
Code,
1981, 1953,
53052)
53051 and
§§
were
part
reenacted as
of the Government Code after the deci-
sion in
City
supra,
Arellano v.
Burbank,
pre-
must
it
of
sumed
Legislature
apply
intended them to
to death
.eases.
County Kern,
Dillard v.
P.2d particular assistance in Cal.App. 258 of no question The former presented. the here case solution of the Code, required involved section 4075 of the Political county presented against ‘all claims’ should be that provided, in the the court was con therein while latter case proved plaintiff cerned with whether the had the elements liability required of the statute then force (Stats. under 5618). p. 756; Deering’s Laws, 2 The same Gen. Act involving wrongful death true with reference to eases against (Beeson City city Angeles actions v. Los the of Los City Angeles, ; Huey Los Cal.App. P. Angeles, cases in Cal.App. 918]), as these brought provision volved a shall be on charter that ‘No suit any pre claim been . . . until a demand for the same has sented. .. .’ ‘injuries
“Thus, liability for imposing while a statute persons’ liability wrongful has been include construed to (Arellano supra, cited), death Burbank, and cases it while has a statute been sometimes assumed that requiring filing prerequisite of a claim as a to suit death, cludes a suit for wrongful in no case has it been held provisions filing requiring of section of a claim person ‘whenever it any has been in- claimed jured . . . within 90 after the has occurred’ accident apply wrongful to a necessarily Nor situation. does it follow phrase ‘injuries persons’ because the as used in a statute imposing has been construed to include wrongful death, language of section 1981 should be con- require strued to filing prerequisite of a claim as a maintenance of an action for death. plain
“It is manifest from wording qualify Legislature intention of the was the it right against negligent law action common only requiring filing of claim in the a verified event injured injured person claims that he has as a been result public employee occurring during of a public employment. course of the latter’s Had been the Legislature provisions intention extend of this another, section to new and different cause of action which comes into existence at the time death of the language person, appropriate could, and no would, doubt have used. should not, guise judicial been Courts under the interpretation, attempt to add legis to or detract *10 expressed lative intent the words of a statute. This especially when, Supreme true as the Court said the recent case of v. McCollister, Stewart 48], ‘The several claims statutes provisions and charter pre requirements scribing varying concerning length the of time filing claims, for the of verified the thereof, contents and the filing presentation manner of may well be said to have traps unwary. for become the No additional trap should be added an unwarranted construction of said section 1981.’ unwilling We give to our imprimatur to a strained con struction applying of the it to a cause of action which, reading from a of the section’s terms, is not included purview. within its
“In foregoing view of the conclusion at which we have arrived, deem unnecessary we it to discuss or decide other points made and issues upon raised appeal. this judgment
“The is reversed and the cause remanded with directions to the court below to overrule the demurrer and try upon the cause the merits.”
For the reasons above stated I would reverse judgment. the EDMONDS, J. agreement I am with the conclusions of the Appeal District Court of cause of action for wrongful death does not come within purview the claim statute judgment and the should be reversed. The reasoning of that court unnecessary made discussion of other questions presented by parties. However, contrary conclusion now upon reached applicability of the statute to a cause of action requires considera tion of the contention inapplicable statute also is a cause of upon action based wanton and reckless miscon question duct. The should not be evaded ground complaint states a cause of action negligence and could alone not be amended to state one for wanton and reckless misconduct. As I read complaint, opinion accurately does not ’
summarize plaintiffs allegations. According plead- to the ing, extremely dangerous it was painter for a to work on the vicinity towers in the of “hot wires” and specialized certain safety required. were precautions None of precautions these assigned observed. The electrical job mechanic to the necessary precautions “insisted on certain . . . which if taken painting job would somewhat slow down the and increase its O’Connor, complaint costs.” continues, “for pur- pose being proceed job able with said expedi- with such desired, he tion cost as caused the removal of said Elec- job, trical Mechanic from the and thereafter, willful, neg- ligent disregard and reckless of the lives and limbs of mem- crew, adopted practice working bers of said and did painting cause his crew to work proximity wires, said tension protection without aforesaid competent Mechanics, knowledge Electrical and with authority pursuant the consent and directions” the other defendants. allegations are sufficient to state a
cause of action for wanton and reckless misconduct. “A tort having some of the characteristics of both willfulness occurs when a with no intent to cause intentionally performs harm an act so unreasonable and dangerous that he knows, know, highly or should *11 probable (Rest. Torts, seq.; that harm will result. 500 et § Prosser, Torts, pp. 260, 261.) a has been Such tort la negligence,’ beled ‘willful negligence,’ ‘wanton and willful misconduct,’ ‘gross negli ‘wanton and willful and even ’ gence. accurately designated is most It as wanton and intention, reckless misconduct. It involves no as does will misconduct, harm, negligence ful to do and it differs from perform that it does involve an intention an act knows, lmow, very probably actor or should will cause harm. (Citations.) closely Wanton and reckless misconduct is more akin negligence, to willful misconduct has than to and it most legal consequences jus of the Thus, of willful misconduct. contributory negli punitive damages, tifies an award of gence plaintiff (Donnelly v. is not a defense.” South Co., 863, 465].) ern Pac. 18 869-870 P.2d [118 disregard examples As of conduct which is reckless safety another, Donnelly case cites York New Central Mohney, R. R . Co. U. 287, S. S.Ct. 64 L.Ed. [40 502], involving a collision between railroad trains after the engineer one past had run his train separate danger two signals. example given Another operation is the of a bus over dangerous a crossing railroad at a rate of 55 to 60 miles per hour. Beach (Virginia Bus Line v. Campbell, 73 F.2d 97.) “Such conduct constitutes negligence. more than It dangerous performed is a act intentionally with the knowl edge probably that it will (Donnelly cause harm.” v. South ern Co., Pac. supra, p. 870.) In Vega v. Industrial Com., Acc. 529, 27 Cal.2d Aircraft finding a of “serious and wilful misconduct employer” by
of the upheld commission was on evidence showed supervisory a failure employees to take the proper safety precautions conducting experimental work ‘‘ extremely of an dangerous nature. The said: court Serious and wilful misconduct is conduct which the employer knew, or known, should have likely was injury to result in serious or which disregard evinced safety reckless for the employe.” (Pp. 533-534.)
“Serious and willful misconduct is conduct that the em- ployer knew, or known, likely should have to cause seri- injury, ous or conduct that disregard evinces reckless safety (Citations.) others. It been repeatedly has held that the employment of workmen under conditions guarded that can against disregard constitutes a reckless safety. their (Citations.) The test under these cases employer whether the knowingly willfully committed an act that he knew or should likely have known was to cause employee.” harm to (Parkhurst Com., Industrial Acc. 20 Cal.2d 829-830 P.2d 113]; Hatheway v. Indus- trial Com., Acc. 13 Cal.2d 68].) alleges this case all of the elements neces- sary to constitute the tort of “wanton and reckless miscon- duct,” as Donnelly it is called in case, supra, or of “wil- misconduct,” ful designation generally more applied to init the decisions and (Rest., Torts, statutes. special note.) Here defendants, alleged, danger it is knew the deliberately failed provide, removed, or even proper safety procedures. This far than simple allegation more although negligence may be included within the scope pleading. alleged judg- If the proved, facts
770 ment based wanton and reckless misconduct would be plaintiffs warranted. The situation not one where is at- tempt by formally the claim alleging evade statute negligent They allege acts also were “wilful.” all of the facts necessary support finding a of wilful This misconduct. be- implication majority opinion allega- lies the tion of wilfullness was mere formalism. correctly
Even if complaint it be concluded that the only, states cause of action is it obvious alleged plaintiffs the facts could state a cause of action for wanton and reckless misconduct. “Unless it is clear that does not state a cause of action and can objections be so amended as to obviate thereto (Hillman error to permission refuse amend.” v. Hillman Co., Land Cal.App.2d People 81 174, ; 181 P.2d v. [183 730] Turlock 546, Home Co., ; Tel. & Tel. 200 Cal. 550 P. [253 1108] Payne v. 153 Baehr, 441, ; Cal. 447-448 Photochart P. [95 Riccio, 547].) v. Del Cal.App.2d 315, 94 319 Under P.2d [210 the circumstances, general should not have been demurrer sustained leave without to amend. that the com- upon the conclusion
By basing judgment negligence only, the ma- cause action plaint states a misconduct is not concede that wilful jority implicitly 1981 provisions of section of the Government within the cluded possible. By interpretation of statute No Code. other applies only “negligence or careless- terms, it express its misconduct” is included. “Wilful ness.” strictly law will derogation the common Statutes 279, 9 282 P.2d Hoffman, v. Cal.2d (McCann [70 construed. 65, 438].) 70 P. Alioto, 210 At v. Cal. 909]; [290 Callet public employee was liable for tortious law, the common 782, 50]; Doeg Blauth, 789 P. (Perkins v. 163 Cal. act. [127 Am.St.Rep. P. 213, 216-217 77 Cook, 126 Cal. [58 v. County Angeles, Los 183 Cal. 474 Elliott v. 171]; cf. Burton, Cal.App. 395, P. Moore v. 899]; P. [242 Code, 1981, places procedural 902].) Government previously existing requirement upon the maintenance (Veriddo Renaud, 263, 266 of action. cause Decker, Cal.App.2d ; 647] Huffaker upon law 254].) This limitation common cause strictly not extended construed and of action should specifically encompassed other those to causes of action than terms of statute. within the *13 consistently general has followed the rule that This court “negligence.” is much more than It misconduct” “wilful doing act, per- rather failure to is the intentional an than duty. basic, merely distinction form The is technical. essentially types two conduct The different. “Wilful “negligence.” recently misconduct” is not As as Benton v. Sloss, 399, 575], court, interpret- Vehicle ing 403, distinguished sections 402 Code between “negligence” misconduct,” holding “wilful latter not included within the former. upon
The Benton Pinyan, case relies Weber v. 9 Cal.2d 183, 407], length A.L.R. which reviews at separate cases distinguishing types two of conduct. There, question the court was faced with the whether “wilful misconduct” in (now section of the Vehicle Act Veh. 141% Code, §403) is the same “negligence” in section 1714% (now of the Civil Code, 402). Code Veh. It held that the types two of conduct were reaching different. In its con clusion, upon it relied drawing cases the distinction in the general field of tort law upon as well as construing decisions the motor emphasize vehicle statutes. point To its Legislature difference, understood the it in passing mentioned the use of “negligence” both and “wilful misconduct” Vehicle Code, section 352, relating liability for the acts of a minor. Code,
Civil draws the distinction between types by separately the two of conduct describing giving acts liability. provides: “Everyone rise to It is responsible; not only .acts, for the result his injury willful but also for an by of ordinary occasioned another his want care or skill in management or property person, .except so far as has, willfully ordinary latter care, brought want injury upon himself. ...” Co., supra, provides graphic Donnelly v. Pac. Southern difference between and wilful explanation of the degrees varying negligence. and of misconduct certain question was whether involved actions constituted only misconduct, basis could wilful merely they predicated, negligence, or whether were even degree. though “Negligence of a The court said: is an tort, degree unintentional failure to exercise the of care given in a situation a reasonable man under similar cir protect cumstances would exercise to others harm. negligent (Citations.) person A has no desire to cause the he (citation), and from his carelessness results harm that willful mis- guilty of distinguished from a must be cause intends to battery, who assault and conduct, such as contradic- negligence are Willfulness (Citation.) harm. negligent, it is not conduct tory (Citations.) If terms. (P. 869.) negligence.” Other- willful, is not if it is it willful; court, considered, said the being stated, conduct wise rule, it con- but “gross” under the California have been misconduct. and reckless not wanton negligence and stituted chapter Statutes adoption of Prior between based, distinction 1981 is upon which section clearly had been “wilful misconduct” “negligence” Cal.App. 13 Clemow, 111 In Malone courts. drawn ‘gross confuse “We should P. was said: there is a misconduct,’ clear because negligence’ with ‘willful *14 17.) Reviewing (P. terms.” between the two distinction the element held “whenever authorities, the court act, it ceases to knowledge enters into and wilfulness misconduct,’ and ‘willful this negligence, and becomes at least being degree negligence is con- matter what is true no (P. 17.) sidered.” meaning phrases in a scope and of words
“When the interpreted by courts, repeatedly there have been statute subsequent use them in a statute is some indication that the like, construction.” setting in a similar carries with ; City Jordan, (Perry Cal.2d Payne, 305].) Long Beach v. The frequent “negligence” distinguished from definitions of misconduct,” application and the definition to .“wilful negligence” “resulting from in section 171414 (now Code, 402,) legislative Code Veh. indicate a Civil give “as a result of the intent a similar construction to negligence” section 1981.
Therefore, may correctly even if it be held that a cause of action for within terms of included statute, improperly. the demurrer was sustained is based a cause of action for wanton and misconduct, required. reckless for which no claim is as those stated the District reason, as well this For judgment. reverse the I would Appeal, Court rehearing for a was denied November petition Appellants’ J., Carter, J., opinion were of Edmonds, 20, 1952. granted. should petition