WEBER v. PINYAN

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District Court of Appeal, Fourth District, California.

WEBER et al. v. PINYAN et al.†

Civ. 1961.

Decided: October 19, 1936

F. L. Richardson, of San Diego, for appellants. Wright, Monroe, Thomas & Glenn, of San Diego, for respondents.

This is an appeal from a judgment entered after sustaining a demurrer to a first amended complaint without leave to amend.

Plaintiffs are husband and wife. Norma Bird was the owner of an automobile in which Bruce Robert Pinyan took Joyce Weber for a ride as his guest. Pinyan used the car with the express permission of Norma Bird. Mrs. Weber was injured and this action followed. The amended complaint alleged acts of Pinyan which might have supported a judgment for plaintiffs, at least against him, under the rule laid down in Barcroft v. Adkins, 6 Cal.App.(2d) 180, 44 P.(2d) 379. Service of summons was not had upon Pinyan and he had not appeared in the action at the time of the judgment.

The principal question presented is whether an action based on the willful misconduct of the driver of a borrowed car can be maintained against the owner for injuries to a guest of the driver, under the provisions of section 1714 1/4 of the Civil Code and section 141 3/4 of the California Vehicle Act (St.1923, p. 517, § 141 3/4, as added by St.1929, p. 1580, as amended by St.1931, p. 1693) as those sections existed at the time of the accident on May 18, 1935. A decision of this question requires the careful interpretation of those sections, and a solution of the problem of whether the owner who consents to the use of her automobile by another and whose liability is based on statutory imputed negligence, is liable for injuries to a guest caused by the willful misconduct of the person to whom she lends her car. We will refer to section 1714 1/4 of the Civil Code as the Imputed Negligence Act, and to section 141 3/4 of the California Vehicle Act as the guest law.

[1–4] These two statutes were passed at the same session of the Legislature and therefore must be construed together. We must determine the intention of that body in adopting them, and if reasonably possible, should give them a harmonious construction. Each created a liability unknown under the common law. The Imputed Negligence Act created a new right of action not known before in California. Cook v. Superior Court, 12 Cal.App.(2d) 608, 55 P.(2d) 1227. The guest law placed a limitation on a former right of action having origin in section 377 of the Code of Civil Procedure and section 2096 of the Civil Code by changing “the nature and character of the proof required in each case.” Krause v. Rarity, 210 Cal. 644, 293 P.62, 66, 77 A.L.R. 1327.

“Willful misconduct,” as used in the guest law, now has a settled definition in California “as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.” Turner v. Standard Oil Co., 134 Cal.App.622, 25 P.(2d) 988, 990; Meek v. Fowler, 3 Cal.(2d) 420, 45 P.(2d) 194, 197. This definition substantially conforms to those used in other jurisdictions in the United States though in some states different names have been used to fit the definition. In some states “willful negligence” is a frequently used and often criticized term. Kelly v. Malott (C.C.A.) 135 F. 74. Restatement of the Law, Torts, § 500, uses the term “Reckless Disregard of Safety” to characterize a like culpability.

Courts have found difficulty in drawing a line of demarkation between gross negligence and willful misconduct. In Sorrell v. White, 103 Vt. 277, 153 A. 359, 363, the Supreme court of Vermont said: “For present purposes it is unnecessary perhaps, in any event, it is impossible––more exactly to locate the shadowy line of demarkation between the two. At best the boundary can only be approximated.”

It must be conceded that the majority view of the courts of the land is to the effect that the difference between negligence and willful misconduct is one of kind and not of degree. Bordonaro v. Senk, 109 Conn. 428, 147 A. 136. It is also said that when willfulness appears the act ceases to be negligence. Thayer v. Denver & R. G. R. Co., 21 N.M. 330, 154 P. 691. These two cases illustrate the extreme view but from the many that support the view that willful misconduct is something different from negligence, we cite the following by way of illustration: Boneau v. Swift & Co. (Mo.App. St. Louis) 66 S.W.(2d) 172; Neary v. Northern Pac. Ry. Co., 41 Mont. 480, 110 P. 226; Central of Georgia Ry. Co. v. Stamps, 48 Ga.App. 309, 172 S.E. 806; Moore v. East St. Louis Suburban Ry. Co. (Mo.App.) 54 S.W.(2d) 767; Burns v. Chicago & A. R. Co., 229 Ill.App. 170; Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392; Isaacson v. Boston, Worcester & N. Y. St. Ry. Co., 278 Mass. 378, 180 N.E. 118; Finkler v. Zimmer, 258 Mich. 336, 241 N. W. 851; Sorrell v. White, supra. In some of these jurisdictions degrees of negligence are not recognized. In none of the many cases from other jurisdictions that we have read does it appear that the courts had confronting them the precise question which is before this court under statutes similar to ours. However, we must admit that we have not been able to search the statutes of those states.

The courts of still other jurisdictions take a contrary view and have concluded that willful misconduct is a degree of negligence. For illustration, see the following: Stagner v. Craig, 159 Tenn. 511, 19 S.W.(2d) 234; Ashton v. Blue River Power Co., 117 Neb. 661, 222 N.W. 42; Bolin v. Chicago, St. P., M. & O. Ry. Co., 108 Wis. 333, 84 N.W. 446, 81 Am.St. Rep. 911; McNeil v. Munson S. S. Lines, 184 Ala. 420, 63 So. 992; Kaler v. Puget Sound Bridge & Dredging Co., 72 Wash. 497, 130 P. 894, 20 A.L.R. 674; Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975.

When we turn to the decisions of California we find that they are not in harmony on the question we are considering. In weighing these cases it should always be borne in mind that prior to 1929, the year of the adoption of the imputed negligence act and the guest law, our courts had no occasion to determine whether willful misconduct was a degree of negligence or differed from it in kind. All that was being done was to endeavor “to locate the shadowy line of demarkation between the two.” Sorrell v. White, supra. There was no occasion to decide the question now confronting us. Therefore anything said in any of the earlier cases must not be regarded as decisive in the interpretation to be placed on the imputed negligence act and the guest law.

We will first consider the cases lending support to the position of respondents that willful misconduct differs from negligence in kind and that therefore willful misconduct cannot be included in any logical definition of negligence.

A frequently cited case is that of Tognazzini v. Freeman, 18 Cal.App. 468, 123 P. 540, 543, where the court, in attempting to draw the line between negligence and willfulness, said:

“The evident conflict in the trial court's presentation of the vital issue in the case to the jury cannot be reconciled, or the charge of the court as a whole harmonized, upon the theory that the term ‘negligence,’ as used by the court in the instruction complained of, was broad enough in its legal signification to cover both the careless and the willful acts of the defendants. Ordinarily, and likewise in the law, there is a decided and well–defined distinction between mere ‘negligence’ and ‘willfulness.’ Negligence is opposed to diligence, and signifies the absence of care. It is negative in its nature, implying a failure of duty, and excluding the idea of intentional wrong, and it follows that the moment a person wills to do an injury he ceases to be negligent. [Citing cases.]

“Notwithstanding the confused and indiscriminate use at times of the terms ‘negligence’ and ‘willfulness' by judges and text–writers, it is certain that the weight of authority supports the view that those terms have a distinct and well–defined meaning, which is clearly pointed out in Holwerson v. St. Louis, etc., Co., supra [157 Mo. 216, 57 S.W. 770, 774, 50 L.R.A. 850], where it is said: ‘By “negligence” is meant ordinary negligence––a term the significance of which is reasonably well fixed. By gross negligence is meant exceeding negligence––that which is mere inadvertence in a superlative degree. * * * By “willful negligence” is meant not strictly negligence at all, to speak exactly, since negligence implies inadvertence, and whenever there is an exercise of will in a particular direction there is an end of inadvertence, but rather an intentional failure to perform a manifest duty, which is important to the person injured, in preventing the injury, in reckless disregard of the consequences as affecting the life or property of another. Such conduct is not negligence in any proper sense, and the term “willful negligence,” if these words are to be interpreted with scientific accuracy, is a misnomer.”’

The next frequently cited case which attempted to draw the dividing line between gross negligence and willful misconduct is Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510, 512, where it is said: “‘Willful misconduct’ means something different from and more than negligence, however gross. The term ‘serious and willful misconduct’ is described by the Supreme Judicial Court of Massachusetts as being something ‘much more than mere negligence, or even gross or culpable negligence,’ and as involving ‘conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences.’ In re Burns, 218 Mass. 8, 105 N.E. 601, Ann.Cas.1916A, 787. The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence. To constitute ‘willful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. Smith v. Central, etc., Ry. Co., 165 Ala. 407, 51 So. 792.”

These definitions in the Tognazzini and Helme Cases have been frequently quoted and cited in recent cases where the courts were attempting to draw the lines between ordinary negligence, gross negligence, and willful misconduct under the guest law. See Malone v. Clemow, 111 Cal.App. 13, 295 P. 70; Whiteford v. Yuba City Union H. S. Dist., 117 Cal.App. 462, 4 P.(2d) 266; Howard v. Howard, 132 Cal.App. 124, 22 P.(2d) 279; Turner v. Standard Oil Co., supra; Kastel v. Stieber, 215 Cal. 37, 8 P.(2d) 474; Meek v. Fowler, supra; Gimenez v. Rissen, 12 Cal.App.(2d) 152, 55 P.(2d) 292.

In the Gimenez Case the plaintiffs, guests, recovered judgment against their minor host, the driver of the car who was guilty of willful misconduct, and his parents who had signed the application for his operator's license. The judgment against the driver was affirmed, and that against his parents was reversed upon the ground that they were liable for his negligence but not for his willful misconduct. The imputed negligence act was not involved in that case but rather section 62 of the California Vehicle Act (St.1929, p. 522) as it then existed. That section made the parents who signed the application of the minor liable for his negligent acts, just as the imputed negligence act makes the owner who lends his car liable for the negligence of the borrower. It is apparent that there is no logical way of distinguishing between the Gimenez Case and the instant case. It must be construed as direct authority for holding that willful misconduct differs from negligence in kind and not merely in degree, and that a guest cannot recover from an owner who lends his car to another whose willful misconduct causes the injuries to the guest. A hearing by the Supreme Court was not asked in the Gimenez Case.

When we study the Gimenez Case and other California authorities we are forced to the conclusion that the results there reached were primarily founded on the definitions of ordinary negligence, gross negligence and willful misconduct as found in the Tognazzini and Helme Cases. In a study of the definitions in these two cases, and the many cases citing or quoting them, we find two paramount thoughts running through all of them which seem to control the conclusions reached: (1) That negligence is opposed to diligence, signifies an absence of care, and is negative in its nature; and (2) “‘Willful misconduct’ means something different from and more than negligence” and is positive in its nature.

In one sense of the term it is entirely proper to define negligence as negative in its nature. There can be no negligence where one of the parties does not owe a duty to the other. When in the law we refer to negligence as the failure to perform a required duty owed by one to another it of course implies a neglect of duty and in that sense is negative. However, when we use negligence in the sense of referring to the act which constitutes the breach of duty it is improper to say that it is negative in nature for the act may be either negative or positive. In California where degrees of negligence are recognized, a failure to recognize this distinction will lead to mistake and error in construing the two statutes we are considering.

We may illustrate our meaning by using the familiar example of speed. The driver of an automobile owes the duty of not exposing another to unreasonable and unnecessary risk of injury. Where excessive speed produces this result it constitutes negligence. Speed of itself and standing alone does not constitute willful misconduct. Yet speed is the result of positive thought followed by direct muscular action. Depressing the throttle which causes speed is the result of intent and is a willful act, for the brain directs the muscular acts which cause the speed. When we refer to the negligent act of speeding we refer to a positive, intentional, and willful act. When we refer to the breach of the duty of not exposing another to the danger of injury from excessive speed, we may well classify that negligence as negative in its nature for it is the failure to use due care.

A frequently used and approved definition of “negligence” is found in Richardson v. Kier, 34 Cal. 63, 91 Am.Dec. 681, as follows: “‘Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; moreover it is not absolute or intrinsic, but always relative to some circumstance of time, place or person.’ (Broom's Legal Maxims, 329.)”

Observe that this definition is concerned with the acts which may constitute negligence among which is “doing something which a prudent and reasonable man would not do.” When we do something we act affirmatively and often intentionally. The other part of the definition refers to the negative, that is the failure (omission) to do something. It seems clear from this long–accepted definition that some negligent acts are negative and others positive in their nature.

Willful misconduct is “intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.” Meek v. Fowler, supra. That definition was written in a motor vehicle guest case. To make it general, the phrases, “in the operation of a motor vehicle” and “to a guest,” should be eliminated. With them deleted it exactly conforms to one phase of the definition of negligent acts which is last quoted, with the added proviso that in willful misconduct the circumstances of the case disclose “knowledge, express or to be implied, that an injury * * * will be a probable result.” Thus these two definitions are of identical acts which may constitute either willful misconduct or negligence with the only distinguishing feature between the two being the probable results to be expected. As the acts constituting negligence and willful misconduct may be the same it seems conclusive that the two differ only in degree and not in kind when we have to distinguish them by the circumstances under which they are performed as indicating the probability of ensuing injury.

In Gibbons v. Naritoka, 102 Cal.App. 669, 283 P. 845, 847, it is said: “Liability for injuries sustained may attach, not only for the result of one's deliberate negligent acts, but also for his failure to exercise due care in the performance of his duty or in the management of his property. Negligence may consist of affirmative acts or careless omissions. Section 1714, Civ.Code. Mr. Justice Henshaw says in the case of Basler v. Sacramento Gas & Elec. Co., 158 Cal. 514, 518, 111 P. 530, 532, Ann.Cas.1912A, 642: ‘Negligence may be active or passive in character. It may consist in heedlessly doing an improper thing, or in heedlessly refraining from doing the proper thing. Whether the circumstances call for activity or passivity, one who does not do what he should is equally chargeable with negligence with him who does what he should not.”’

We can attach little importance to the often repeated statement that “‘Willful misconduct’ means something different from and more than negligence.” Such a statement is factually and technically true and still is no reason for holding that willful misconduct differs from negligence in kind under the two laws we are considering and in California where degrees of negligence are recognized. Krause v. Rarity, supra. It is also true that ordinary negligence means “something different from and more than” slight negligence, and the same is true of gross negligence when compared with ordinary and slight negligence. Each of them constitute a degree of negligence. Of course, willful misconduct is different from and more than negligence because in willful misconduct there must appear the added element of knowledge of the probability of injury. In that respect alone it differs from and is more than negligence, but it does not follow from that fact that willful misconduct is different in kind and not merely in degree from negligence. Instead, the definitions of negligence and willful misconduct which we have quoted would indicate that the difference between the two under the guest law and the imputed negligence act is one of degree only.

When we turn to the cases adopting the opposite view from those supporting the position of respondents, we find arguments which force us to the conclusion that the judgment of the trial court must be reversed.

In the early case of Esrey v. Southern Pacific Co., 88 Cal. 399, 26 P. 211, it was held that a complaint alleging negligence would not support a judgment based on willful and wanton acts. However, this case was again before the Supreme Court in 103 Cal. 541, 37 P. 500. The complaint had been amended alleging willful and wanton acts on the part of the servants of defendant. The court there held that the cause of action had not been altered by the amendment and rejected a plea based on the statute of limitations which would have run had a new and different cause of action been alleged in the amendment. It follows that the court must have been of the opinion that a willful tort differed from ordinary negligence only in degree and not in kind and that a new cause of action had not been alleged in the amended complaint.

In the case of Meek v. Fowler, 35 P.(2d) 410, a majority of the members of this court expressed the opinion that willful misconduct was a degree of negligence and did not differ from it in kind. A hearing was granted by the Supreme Court [3 Cal.(2d) 420, 45 P.(2d) 194], but an expression of its views on this question was withheld. This court by way of dicta reiterated its views on this question in the case of Hall v. Mazzei, 57 P.(2d) 948.

The case of Manica v. Smith, 138 Cal.App. 695, 33 P.(2d) 418, 420, in which a hearing was denied by the Supreme Court, is authority for holding that under the guest law willful misconduct is a degree of negligence and not a tort separate and distinct from negligence. In that case the court said:

“It is also asserted there is a fatal variance between the allegations of the complaint to the effect that the plaintiff's injuries were sustained as a result of the manner in which the automobile was operated, amounting to gross negligence on the part of Smith, and the evidence which was adduced at the trial which clearly shows that he was guilty of willful misconduct.

“We are of the opinion the conduct of the defendant Smith in recklessly driving the automobile in the manner above related amounts to gross negligence, and that it also constitutes willful misconduct.

“There is no variance between the allegations of the complaint that the manner in which the defendant Smith drove the car amounted to gross negligence, and the proof which was adduced at the trial indicating that he was also guilty of willful misconduct. The only negligence which is alleged was that he operated the machine in such a grossly negligent manner that the accident occurred. Negligence may be alleged in general terms. It is immaterial that he [the plaintiff] characterized the conduct of the driver as gross negligence, if in fact it was more aggravated so as to constitute willful misconduct. In truth, it included both. * * *

“From the foregoing definitions it is evident that acts or conduct which merely amount to gross negligence may not be aggravated enough to also characterize them as willful misconduct. Upon the contrary, acts which do amount to willful misconduct may also include gross negligence. In the present case, while the conduct of Smith does amount to willful misconduct, we are satisfied that it also constitutes gross negligence.”

When the guest law was first enacted (Stats.1929, c. 787, p. 1580), it took away the right of action of the guest for ordinary negligence and made the “owner, or driver or person responsible for the operation” of a motor vehicle liable only for death or injury caused by intoxication, willful misconduct, or gross negligence. At common law no action lay for a tortious injury which resulted in death. Upon passage of the original guest law the question immediately arose as to the effect which the new statute, doing away with actions for negligence in guest cases, would have upon pending actions for death of a guest caused by the ordinary negligence of his host driver. In holding that such actions would not abate, the Supreme Court in Krause v. Rarity, supra, said:

“It cannot be doubted that section 377 of the Code of Civil Procedure and section 2096 of the Civil Code should be read together. When so considered with reference to the present controversy, they would mean that the heirs on September 12, 1927, had a cause of action against the defendant Rarity for the death of Krause, and that Rarity's liability would be tested by the rule of ordinary care. Suit was brought on November 2, 1927, alleging a cause of action under the then existing law on ordinary negligence which is the same as the want of ordinary care as provided in section 2096. Judgment on the verdict was entered September 22, 1928, and the notice of appeal was filed November 19, 1928. Pending the appeal and on August 14, 1929, section 141 3/4 of the California Vehicle Act was enacted.

“It is apparent that, if the new section had been enacted without the proviso [permitting recovery for gross negligence, wilful misconduct or intoxication], the rule contended for by the defendant Rarity would apply, the plaintiffs' cause of action would have been wiped out, and no recovery could be had on the judgment against said defendant, for the reason that said judgment has not become final. In such case the Legislature would have been unrestrained by constitutional barriers, and its intention, in the absence of a saving clause, would have been conclusively manifest. But the Legislature did not stop with the enactment of the portions of the statute which would have worked a repeal irrevocably, but added the provision which in effect continued the right of action on account of the death of the guest. In other words, there has not been a moment of time since the enactment of section 377 to the present time when an action would not lie on behalf of the heirs on account of the death of the guest. The only change brought about by the new law was in the nature and character of the proof required in each case. There was no abolishment of the right or cause of action, but only a change in the proof required, not to maintain the action, but to permit a recovery.”

A similar question was presented after the Legislature had deleted the words “or gross negligence” from the statute (chapter 812, p. 1693, Stats.1931), leaving the “owner, or driver or person responsible for the operation” of the automobile responsible only for injuries or death caused by intoxication or willful misconduct. This question was answered in the case of Stotts v. Blickle, 220 Cal. 225, 30 P.(2d) 392, 393, where, after quoting a portion of the opinion in Krause v. Rarity, which we have quoted, that court said: “This language is clearly applicable to the situation presented by the 1931 amendment. It may well be that ‘wilful misconduct’ differs more radically from ‘gross negligence’ than ‘gross negligence’ differs from ‘ordinary negligence.’ Nevertheless the matter is still one of the nature of proof required to establish the culpability of the defendant. The right of action against a host for wrongful death of a guest is no more destroyed by the 1931 amendment than by the 1929 statute.”

If willful misconduct were not a degree of negligence, but a definitely distinct, separate, and different tort, the Supreme Court could not have reached the conclusion it did in the Stotts Case. The right of action in death cases, given by section 377 of the Code of Civil Procedure, depended upon section 2096 of the Civil Code, which provides that “a carrier of persons without reward must use ordinary care and diligence for their safe carriage.” In other words, the gratuitous carrier owed his guest the duty of ordinary care and was liable for ordinary negligence under that section. The heirs of a guest whose death was caused by the ordinary negligence of his host could recover up to August 14, 1929, the effective date of the first guest law which limited the recovery to cases where either intoxication, willful misconduct, or gross negligence was proved. In accidents happening between that date and August 14, 1931, they could only recover where the death was caused by intoxication, willful misconduct, or gross negligence. Where an accident happened after August 14, 1931, the heirs could only recover for death caused by intoxication or willful misconduct, gross negligence having been eliminated from the guest law as a ground of recovery, but they could recover where there was ordinary negligence and the accident happened prior to August 14, 1929, and where there was gross negligence and the accident happened between that date and August 14, 1931. Stotts v. Blickle, supra; Krause v. Rarity, supra. The right of action in death cases did not exist at common law and was purely statutory. Section 377 of the Code of Civil Procedure and section 2096 of the Civil Code gave the heirs the right of recovery for ordinary negligence of the host. In this respect the ground of recovery, ordinary negligence, was the same as under the imputed negligence act. If willful misconduct, as used in the guest law, were a tort separate, different, and distinct from negligence, the provision in the amended guest law that in death cases no recovery could be had except where death had been caused by intoxication or willful misconduct, and the elimination of all reference to negligence, would have resulted in the abatement of all such actions based on ordinary or gross negligence. The reason for this is found in the rule that where a right of action did not exist at common law, but was created by statute, and was not protected by the State or Federal Constitutions, a repeal prior to final judgment of the statute creating the right of action would abolish the right of action and defeat a recovery. People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L.R.A.(N.S.) 934, Ann.Cas. 1912B, 1148; Krause v. Rarity, supra. Such actions based on negligence did not abate upon the amendment of the guest law providing that the recovery could be had only on proof of intoxication or willful misconduct. Stotts v. Blickle, supra. The conclusion necessarily follows that under the imputed negligence act and the guest law, willful misconduct is a degree of negligence and does not differ from it in kind.

The case of Walling v. Rugen, 3 Cal.App.(2d) 471, 39 P.(2d) 827, is of compelling force. A guest suffered injuries and brought action against her host, and the owner of the automobile, alleging willful misconduct. She recovered judgment against both defendants. The judgment against both was affirmed on appeal and a hearing was denied by the Supreme Court. The case cannot be distinguished from the instant case. While the question of whether willful misconduct was a degree of negligence or a different, separate, and distinct tort was not discussed, it is obvious that the judgment against the owner of the car was unsupportable unless willful misconduct as used in the guest law be a degree of negligence and not a different tort.

It follows that under the guest law and the imputed negligence act, the willful misconduct of Bruce Robert Pinyan, if any, should be imputed to Norma Bird, and that the demurrer of Norma Bird to plaintiffs' first amended complaint should have been overruled. Any other conclusion would produce a most illogical result. While we are discussing a guest case, the results reached must be of general effect. If it should be finally decided in California that willful misconduct is not a degree of negligence, but a separate and distinct tort, that conclusion must be controlling in all automobile accident cases involving imputed negligence and not merely in guest cases. For illustration, let us assume that Pinyan had driven the Norma Bird automobile into another automobile and that in so doing he was guilty of willful misconduct. The injured occupants of the other automobile could not recover from the owner, Norma Bird, if willful misconduct is not a degree of negligence, while they could recover from her had Pinyan been guilty of only ordinary negligence. Thus, in so far as the owner is concerned, and under the statutes we are considering, a premium would be placed on the great recklessness of the driver by holding that willful misconduct is a separate tort and not a degree of negligence. We cannot believe that the Legislature intended any such result. This belief is strengthened by the use of the word “owner” in the guest law as it appeared in the California Vehicle Act. If the Legislature did not intend to have the willful misconduct of the driver imputed to an absent owner, there was no reason for having placed the word “owner” in the guest law and so doing was an idle act. The conclusion that the Legislature intended to have the willful misconduct of the driver imputed to the owner under the two statutes is somewhat strengthened by the case of Taylor v. Joyce, 4 Cal.App.(2d) 612, 41 P.(2d) 967, where it is said that, under the language of the guest law, the intoxication of the driver may be imputed to the owner and that the owner need not be personally intoxicated to permit the guest to recover from him.

Another question is presented by the pleadings but is not seriously considered in the briefs. It is alleged in the amended complaint that Pinyan was intoxicated and that the “injuries sustained by said plaintiff, Joyce Weber, were due to the * * * intoxication * * * of the defendant Bruce Robert Pinyan.” The driving of an automobile while intoxicated is an act prohibited by statute. It is usually held that the violation of a statute brings the act within the definition of negligence per se. If driving an automobile while intoxicated is negligence per se, that negligence might be imputed to the owner of the car under the terms of the imputed negligence act. This probably furnishes sufficient ground for reversal of the judgment. However, as this question is not developed in the briefs, and as we are of the opinion that a determination of the question of imputing to the owner the willful misconduct of the person who operates her automobile with her consent is sufficient for the decision of this case, we prefer to place our conclusions on the ground we have first discussed rather than upon the question of the intoxication of the driver being imputed to the owner.

The action against Pinyan should not have been dismissed as he had not appeared and did not request dismissal. He was liable to plaintiffs if his willful misconduct or intoxication, if any, proximately caused Mrs. Weber's injuries and they should have been permitted to have proceeded against him without regard to their right of recovery from Norma Bird.

The judgment is reversed, with instructions to the trial judge to overrule the demurrer of Norma Bird and permit defendants, or either of them, a reasonable time within which to answer.

I concur and dissent.

This is an action brought by the plaintiffs, as husband and wife, to recover damages against the owner for personal injuries alleged to have been sustained by the wife while riding as a guest in an automobile involved in an accident.

The amended complaint alleges that on the 18th day of May, 1935, defendant Norma Bird was the owner of a certain Ford V–8 automobile; that on that date the defendant Bruce Robert Pinyan was operating the same with the consent and permission of the owner; that Joyce Weber was riding as a guest; that while Pinyan was driving at a high and reckless rate of speed he attempted to embrace her and to pull her over toward him; that he placed his right hand and arm around her shoulders and body and attempted to kiss her and in so doing took one or both hands off the steering wheel; that while he was attempting to embrace and kiss and hug her the automobile ran off the road and was wrecked and Joyce Weber was injured; that Pinyan was at that time intoxicated, but his intoxication was then unknown to Joyce Weber; that by reason of the misconduct and intoxication of Pinyan the plaintiff suffered injuries, all of which were due to the carelessness, negligence, recklessness, intoxication, and willful misconduct of Pinyan and to the high rate of speed at which the automobile was driven and his attempt to embrace the plaintiff.

The court sustained the general demurrer of defendant Norma Bird to the amended complaint without leave to amend, and dismissed the action. Plaintiffs were unable to personally serve the summons on Pinyan. Thereupon they filed notice of appeal from the judgment and have brought the case here for review.

This action is brought under the provisions of section 1714 1/4 of the Civil Code, as it existed at the time of the accident: “Every owner of a motor vehicle shall be liable and responsible for the death of or injury to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.” And section 141 3/4 of the California Vehicle Act provided generally: “Any person who as a guest accepts a ride in any vehicle, * * * and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. * * * Nothing in this section contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication or wilful misconduct of such owner, driver or person responsible for the operation of such vehicle, * * * the burden shall be upon plaintiff to establish that such intoxication or wilful misconduct was the proximate cause of such death or injury or damage.”

It will be noted that the original enactment of this section, Stats.1929, c. 787, p. 1580, provided: “Nothing in this section * * * shall be construed as relieving the owner * * * from liability for injury * * * proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver.”

The amendment to said section (Stats. 1931, c. 812, p. 1693) deleted the provision in reference to gross negligence and applied the liability only in case of intoxication or willful misconduct.

If the allegations set out in the amended complaint constitute willful misconduct or intoxication within the meaning of section 141 3/4 of the California Vehicle Act, then it becomes essential to determine whether such willful misconduct may be imputed to the owner of the car.

Upon this latter proposition the appellants urge, and they are supported by some authority, that because section 1714 1/4 of the Civil Code provides that the owner of an automobile, used with his implied or express consent, is liable for the “negligence” of the user, a recover can be had against such owner for the willful misconduct or intoxication of such user in the operation of such vehicle. We shall not attempt to reconcile the several definitions and applications given to the phrase “willful misconduct” as employed in our so–called guest statute. Howard v. Howard, 132 Cal.App. 124, 22 P.(2d) 279; Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A.L.R. 1327; Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510; North Pacific Steamship Co. v. Industrial Accident Commission, 174 Cal. 500, 163 P. 910; Kastel v. Stieber, 215 Cal. 37, 8 P.(2d) 474; Walker v. Bacon, 132 Cal.App. 625, 23 P. (2d) 520. The definition given in the case of Turner v. Standard Oil Co., 134 Cal.App. 622, 25 P.(2d) 988, 990, and adopted in the case of Meek v. Fowler, 3 Cal.(2d) 420, 45 P.(2d) 194, 197, will suffice for a determination of this issue: “‘Willful misconduct,’ within the meaning of this statute, may then be defined as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.”

This definition in Meek v. Fowler, supra, followed the reasoning and definition declared in the case of Helme v. Great Western Milling Co., supra: “‘The mere failure to perform a statutory duty is not, alone, willful misconduct. It amounts only to simple negligence.’ * * * It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the Legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence, and that this misconduct must be willful.” (Italics mine.)

Any negligence might be termed misconduct. Willful misconduct as used in this statute means neither the sort of misconduct involved in negligence nor the mere intent to do the act which constitutes negligence. As has been repeatedly declared, “willful misconduct” means something more than negligence, more, even, than gross negligence. Howard v. Howard, supra; North Pacific Steamship Co. v. Industrial Accident Commission, supra.

Negligence is carelessness whether greater or less in degree, and tends to be negative in character while willful misconduct is something of a more positive nature involving the intentional doing of a wrongful act. Turner v. Standard Oil Co., supra.

By striking the words “gross negligence” from the statute, the Legislature could have meant nothing else but to take away from the guest the right to recover in cases where the injury complained of was caused by the negligence of the driver. It intended to restrict the right of recovery from the driver to willful misconduct and intoxication. Any other construction would deny the true meaning and import of the terms “gross negligence” and “willful misconduct” and nullify the plain intent of the Legislature.

This precise point was determined to be the law in Gimenez v. Rissen, 12 Cal.App.(2d) 152, 55 P.(2d) 292, holding that where negligence, by definition, is opposed to diligence and signifies the absence of care, and is negative in its nature, implying a failure of duty, it excludes the idea of intentional wrong and it follows that a person who wills to do an injury ceases to be negligent.

If “willful misconduct” is a species of and included in the term “negligence,” then it follows that the liability for willful misconduct is imputed to the owner, but if “willful misconduct” is not embraced within the term “negligence,” even though some of the elements of negligence may be included in the term “willful misconduct,” then the rules of statutory interpretation would seem to dictate that the Legislature's intent was to confine such imputation of liability to cases of negligent conduct rather than willful misconduct. I think the latter contention should be sustained.

The Legislature (California Vehicle Code, § 352 [St.1935, p. 145]) seemed to recognize a distinction between the terms “negligence” and “willful misconduct” regarding the imputed liability for civil damages for the negligence of a minor, which provides that the liability shall not be limited to the negligence of the minor but shall include his willful misconduct as well.

For the reasons herein expressed the judgment in favor of Norma Bird should be affirmed, and the judgment dismissing the action against Bruce Robert Pinyan should be reversed.

MARKS, Justice.

I concur: BARNARD, P. J.

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