*1 12282. Third Dist. Mar. 1971.] No. [Civ. CHABOT, Minor, etc., al., et Plaintiffs and Respondents,

KATHLEEN MEREDITH, JOHN ERNEST Appellant.

Counsel Peters, Fuller & David R. Byrne, Fuller and Richard G. for Defend- Logan ant and Appellant. Newton,

Charles E. & Hurley, Newton, Jr., Newton and Albert Plain- tiffs and Respondents.

Opinion

REGAN, from the entered after J. Defendant appeals general judgment mother, her Ann Mary Chabot and verdict for Kathleen jury plaintiffs, Chabot Hillmon.1

Defendant, in a visitor at residence Los while age, years plaintiffs’ Kathleen, to years, to drive Angeles County, age volunteered Medford, a to Kathleen’s Oregon. the local bus so she could take bus depot Kathleen, brother defendant drove her mother her consent and gave bus ticket the where Kathleen a Roland and two friends to purchased depot station, the the at bus $25 for the mother. While trip supplied offered, It agreed to drive Kathleen to was generally Oregon. defendant, if Dave and that Kathleen feel better mentally Staples would Oregon. thought her Kathleen this arrange brother drove to Kathleen’s t . “all h ment was rig ” brother, to because and her Defendant offered make this Kathleen trip feel and that this it make her Roland, were friends of his by doing might to take her and any money Oregon, better. Defendant denied to receiving stated he received no benefit for tangible trip. monies was and the were pooled

The bus ticket cashed proceeds $5 Chabot had about between other had. Dave and Roland Staples used them, was to be for money but defendant had no The money. pooled and food on gas trip. to household to talk Kathleen’s

The went back to the Chabot group left, left his mother she not at home. Roland before but they mother (The to a note were to drive Kathleen Oregon. explaining they going for this that she would not have given testified permission trip mother her be consulted.) didn’t think mother would she been Kathleen if had the bus. caught the fact that she hadn’t over upset automobile, with fiberglass a a Healey Defendant’s Austin four-passenger accident, 36 hours to the been for defendant about prior had purchased top, Los area to the to he it in the trip and had driven twice Angeles Medford. and to to Los on Angeles Saturday

Defendant’s leave night plan Medford, and return to Los on Monday. drive to then Angeles nonstop three took boys The Saturday night. about They p.m. started drove. Several some while others driving. turns slept stops sought expenses and in 1 Plaintiff’s mother received reimbursement medical however, Kathleen, daughter. primary plaintiff, on behalf of her The curred who suffered physical injuries. minor child eat. arrived gas They were made either to or obtain buy something Yreka, California, about two o’clock afternoon. Sunday Yreka, warm,

After defendant took over the It was a driving. stopping and traffic Defendant had never driven afternoon was normal. bright state road is referred commonly road—a what is highway—before. road,” and a to as a “mountain with mountain on one side drop-off steep officer, this According testimony investigating other. road is of the worst stretches of interstate in California “because one highway that it’s and curves many of the fact so curves narrow road blind sharp curve occurred the worst on it.” The on which accident is probably curve before the Shasta River There are acci- north Yreka more bridge. others, dents on this curve than on this had been guardrail at point truck out accidents and be installed. guardrail new wiped *4 About 400 feet south of the scene accident there was sweeping-curve curve, in fact the the sign, although whole warning roadway, considering was almost a “U.” There was no the complete sign. indicator on speed Defendant could recall no at this curve which warning on the accident sign happened.

Defendant had no that curves and stated problems previous he was about driving 60 miles hour on the stretches and was per straight down for the curves. denied slowing He heard tell him having to slow down. turn,

Defendant testified that as he the oncoming accident approached car a was little bit side on his which “startled me and I the wheel to jarred to avoid a right” collision. The car went off to the and struck the right guardrail. could, Defendant turned to the left as hard as he went across the road despite side, and hit the braking, mountain on the other the car turning road, over. From the where the car left on originally place paved side, it right-hand until returned to the there tire again roadway, were marks 120 feet. measuring surface, After to the car returning paved laid feet; down tire marks the marks measuring indicated the vehicle was in a broadside skid.

The accident occurred seven miles north of Yreka at about approximately 2:30 There no p.m. were to the In the independent eyewitnesses crash. officer, Opinion the accident caused the vehicle investigating too fast for the traveling condition of Defendant roadway. admitted accident, to officers after the talking police but could not recall what had been said. The officer testified that the accident investigating after defendant that “guessed” the accident was caused his excessive speed. him road. The officer off the crowding vehicle no any

made mention to a statement. was rational enough give felt that defendant into was read which Staples, to the David According deposition driven evidence, accident the car was scene of the being Yreka to the at a safe He knew weren’t they going speed. a little limit. above speed He esti- into the turns rather fast. were they going According Staples, the car in- got 45 to hour. When at about 50 miles per mated the car’s speed curve, were too fast. knew they going Staples Chabot, brother, Yreka testified that from northbound Kathleen’s Roland road, no and he made the car around not skidding “the driven. Roland stated speed how car was being about protest around stayed roughly sixty-five, vary for the whole didn’t much. condition of the road.” on the seventy, seventy-five, depending sometimes curve, at between defendant’s entering Roland estimated speed, upon their side of the road He saw no car or truck on 65 and hour. 70 miles per to the accident. rounded another before the accident defendant Kathleen testified that just did not recall any fast” and “I scared.” She got seeing curve “pretty pretty out of As the north roadway. vehicle their side group proceeded too Yreka, down because he was going Kathleen told defendant slow fast, she told him this. but could not remember the number times she *5 slow at least

Roland that Kathleen told defendant to down remembered her tell the accident curve. also heard once to Staples approaching defendant to slow down. accident,

As a of the Kathleen suffered severe injuries. result was a within the Defendant contends that Kathleen guest meaning 2 a as a matter of law. He statute guest presents argument. two-pronged Defendant first contends that Kathleen was of accepting capable consent. did the ride as of defendant without and a guest accept parental that the correct rule is that rider who is of sufficient Defendant argues what a in an doing and to know he is in ride age intelligence accepting (See a of the statute. should be deemed within terms guest automobile (1955) 513].) De Falla Tuttle 132 473 P.2d [282 Townley (1969) 2 Vehicle Code section In Morrison v. 17158. 274], ‘guest away commented as follows: “The law’ takes [75 right injuries guest negli of action or to a in a resulting for death motor vehicle driver, gence and only of the permits recovery where there is intoxication or willful primary policy underlying is recovery misconduct. this statute to ordi prevent accepted nary negligence by guest hospitality a who has secondary owner. A policy is to prevent negligence collusive suits between where friends the driver admits to (Italics added.) order shift the burden to his insurance carrier. [Citation.]” Falla, In De automobile accident was a in an girl injured 10-year-old showed, however, a be a that the was guest. girl held to The evidence Girls, her of a Fire that her mother consent to member gave group Camp concerts, bus go a to school signed series of a written attending permit and no she traveled objection made when learned her daughter private acci- car to concerts and was in such other mode when the of transportation dent occurred. De Falla contains factors of and group activity implied consent. maintains, hand,

Here the she minor on the other that whether plaintiff law,3 fact, ride clear the not that law is accepted question of a custody minor child is in the that under the this and facts of parents, law, case the evidence a holding, as a matter of that the offered precludes ride “accepted.” of her mother prior was requested

Kathleen notes that permission specific terminal; Oregon,' that deciding to the after trip bus residence, which leads returned to the Chabot Kathleen mother, her and that to her the inference that the ultimate decision was up been would have consented if testified trial that she not she mother at consulted. was a

Thus, to hold that she she concludes the trial court refused properly further, submits as a matter even however. She goes of law. Kathleen guest living that the true rule that when the minor is is unemancipated control, a “guest” direct as “acceptance” under custody parental (Cf. (1954) be Buckner Vetterick must act of his through the parent. 67]; Hulen P.2d Rocha v. 478].) P.2d cited, none, California have found which No case has been and we the issue of only We hold once precisely acceptance point. raised, fact ride was as it was submitted to the jury properly question *6 there was no and error in so doing. of also contends that the of the sharing

Defendant mere expenses cause become a rather the automobile did not Kathleen to passenger trip answered ap than a contention has been recent guest. This adequately 518, (1969) decisions state. In Carrasco 1 Cal.3d of this v. pellate Nevarez 721, rider has 577], 462 P.2d the court states: “If the Cal.Rptr. [82 (Veh. Code, places great 3 Plaintiff the “accepts” stress on the word as used in statute 17158), only guest recovery a a a basis of “accepts” § who is denied on the ride however, ordinary negligence. Here, Usually clearly plain this element established. acceptance tiff raised the issue issue ultimately and the trial court submitted the of jury question the as a of fact. are a motivating his contributions of a trip contributed expenses said it cannot be the driver’s furnishing influence for the transportation, course, Of when- of the driver. that the rider is accepting ‘hospitality’ abe significant there may drives another without ever one compulsion, conduct; if that were to involve enough his but element of hospitality ride could statute, of for the compensation payment policy A does not rider accept hospitality be deemed irrelevant. generally driver furnishes the and the way’ the rider his own the driver when ‘pays element It is the of this circumstance. compensa- because transportation in ascer- is the relevant criterion which tion not purpose of the driver.” the rider is merely hospitality whether taining accepting 788, (1970) Joslyn Cal.Rptr. v. Callison 794 [90 In 884], no direct evidence reflecting the court comments: “While there was the three to share both riders gave between agreement boys expenses, Nevarez, clear: Once it is supra, seems mandate money. sharing the rider to driver—a flows from established compensation a rider’s status presents jury question.” expenses—the $25 to the that Kathleen contributed “pool” Here there was evidence Defendant had no $5 between them. for the Two other contributed boys trip. her contribu as to whether think it was a jury money. proper question furnishing for the driver’s transportation. tion was a influence motivating Callison, Carrasco, 518; Joslyn supra, 12 supra, 1 Cal.3d (Nevarez v. v. 224, 235 Cal. 788; Hart Wielt v. [84 220]; Kenney (1970) Cal.3d 567 Cal.Rptr. see Rptr. Bozanich Townley (1969) 142]; Morrison 269 P.2d 274].) could not be contends the instruction that Kathleen and constitutes consent is erroneous and ambiguous without guest parental reversible error. contention, the court to defendant’s this is not the instruction

Contrary The court that in not “ac- instructed whether or gave. determining ride, must be considered. As we all the factors and circumstances cepted” discussed, think in issue have “acceptance” properly previously was called find no and therefore an instruction for. We ambiguity instruction, and under the facts in this case there was no error in giving instruction. such *7 substantial defendant contends there was no evidence

Lastly, that the defendant was of willful misconduct. guilty

957 867-871, at Townley, supra, v. Morrison 269 Cal.App.2d pages In misconduct under the statute. willful the law guest reviewed relating there, one of fact for determination As we the issue is primarily noted as a evidence here was not insufficient the trier thereof. think the We of the misconduct. all detailing matter of law show willful Without evidence, Defendant had come into following: the record shows Oregon trip; of new car hours only sports possession car) (as had not been to bed defendant distinguished sleeping hours; road; with the not familiar there some 28 and, the evidence warning; of speeding; opinion plaintiff’s expert traffic officer. Wielt, (See find no error in issue to the Hart submitting jury. 235;

supra, Townley, supra, Morrison v. at p. Morrison, 867-868): 871.) (at at In this supra, court stated “As p. pp. ‘[Wjillful (at 584): stated in Williams misconduct the intentional p. implies either doing or that serious something knowledge, express implied, result, is a as injury from a or the inten- probable, distinguished possible, tional of an act with a wanton and reckless its con- doing disregard sequences.’

“Two recent court decisions appellate analyze further In concept. Pelletti v. Mebrila (1965) 588], Cal.Rptr. the court states: conduct falls ‘[W]hen below the sufficiently acceptable deficient, norm to become we characterize a bad grossly it as imbued with intent which we call misconduct. willful We attribute a state of malicious mind to the actor Chappell intent.’ any actual In irrespective specific Palmer 686], the court con- cludes that a pragmatic test has evolved: ‘. . . whether a reasonable man under the same or similar circumstances faced as those would actor be aware dangerous character of his conduct.’

“The existence of fact, willful misconduct is essentially question and the driver’s entire course of conduct is to be considered. [Citation.] element of intent is inferred from or usually objective external circumstantial evidence. ever, ‘Since the driver will if admit to rarely, having [Citation.] driven with the frame of mind which would his render behavior culpable statute, under the guest intentional, wanton character of his behavior bemay from the circumstances.’ there implied surrounding If [Citation.] is any substantial evidence to support jury’s finding, court appellate will not overturn the verdict. And the be guest statute must [Citation.]

958 for in- of redress construed, right lessens the common law since it strictiy inflicted. juries [Citation.]”

The is affirmed. judgment

Janes, J., concurred. FRIEDMAN, I concur with the result. Plaintiffs’ counsel Acting P. J. of Kathleen’s guest verdicts on the issues request special opportunity Proc., Counsel (Code 625.) status and defendant’s willful misconduct. Civ. § did do The verdict in favor of general prevailing not so. implies findings (Rawlings Harris 265 (1968) on all issues submitted to party jury. v. 452, 288]; (1965) Christensen Malkin 454 Cal.Rptr. [71 v. notion, 114, 836].) altered 123 The same Cal.Rptr. [45 form, of a verdict is the rule review by refusing general appellate expressed by when several issues are tried and one of them is substantial supported (1968) (Lysick evidence and is unaffected error. v. Walcom 258 Cal. 136, 406, 368]; A.L.R.3d v. Burchell App.2d Cal.Rptr. [65 Posz 324, (1962) 896].) there 335-337 When Cal.Rptr. [25 status, finding issue an implied guest-passenger passenger reach the (Tucker court does not issue of willful misconduct. reviewing 10, (1962) Landucci 57 Cal.2d 371 P.2d 766-767 Cal.Rptr. 754]; Rawlings Gillespie (1957) 601].) Cal.2d P.2d 369 [317 courts are with overwhelming caseloads. Well-con- wrestling

Appellate (See, ceived verdicts eliminate issues often simplify special appeal. Raymond v. Paradise School Dist. e.g., Unified 847].) should not tactical choices of trial permit Rather, counsel force abstract issues us. should utilize upon oppor- tunities to force counsel into verdicts. is no There requesting special for the rests problem locating responsibility request. responsibility who will lose the verdict. Under the circumstances of the party case, I do not reach the willful misconduct issue. for a Court was petition hearing denied

Appellant’s Supreme 6, 1971. May