PORTER v. HOFMAN

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District Court of Appeal, Third District, California.

PORTER et ux. v. HOFMAN.†

Civ. 5943.

Decided: April 22, 1938

H. L. Preston and Lilburn Gibson, both of Ukiah, for appellant. Charles Kasch, of Ukiah, for respondents.

In this action brought to recover damages arising out of an accident to a guest in an automobile, the trial judge prepared and rendered an opinion which, from an examination of the entire record, fully and fairly discusses the facts involved, and also sets forth a correct analysis of the law applicable thereto. For that reason the opinion of Hon. Benjamin C. Jones, the trial judge, is adopted as the opinion of this court:

“This is an action to recover damages for injuries sustained by Mrs. Porter while riding as a guest in an automobile owned and operated by the defendant. The action is predicated on alleged willful misconduct by the defendant in the operation of her automobile.

“The accident occurred on April 21, 1936, a few miles south of Ukiah on the state highway at a place commonly known as the Burke hill. Mrs. Hofman and Mrs. Porter had been to San Francisco. Mrs. Hofman's son, a boy eight years old, and a young man, a common acquaintance, were riding in the back seat of the car, a Pontiac two–door sedan. It had been raining, and, although the visibility was good, the highway was wet and slippery. The highway at this place is surfaced with an oiled surface 20 feet in width with graveled shoulders, that on the easterly side where the car left the road being approximately 2 feet wide. For some distance, back, or southerly, from where the car left the highway, the roadway is straight for a considerable distance, rising at a grade of approximately 6 per cent. The car left the highway at about the foot of this grade, and at about where it again commences to ascend to the north. At the bottom of the depression a creek crosses the highway over which there is a concrete bridge.

“After the car left the highway, it proceeded northerly in a depression along the easterly side thereof for a distance of over 130 feet, struck some kind of an obstruction, somersaulted, and came to rest on its wheels headed in a southeasterly direction. Mrs. Porter was thrown from the car when it turned end over end, sustaining severe spinal injuries.

“The evidence is undisputed that, as Mrs. Hofman was proceeding down the hill referred to, she took her eyes from the road and turned to look about her son and the young man in the rear seat. In the language of Mrs. Porter, she not only looked to the rear, but turned around and to the extent of a 60 to 70 per cent. turn to the rear. Immediately thereafter the car left the highway with the consequences above stated.

“The injuries to Mrs. Porter are not disputed, and the question presented is whether willful misconduct exists.

“Willful misconduct is defined as intentionally doing something in the operation of a motor vehicle which should not 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; Meek v. Fowler, 3 Cal.2d 420, 45 P.2d 194; Lennon v. Woodbury, 3 Cal.App.2d 595, 40 P.2d 292; Walker v. Bacon, 132 Cal.App. 625, 23 P.2d 520.

“The act constituting the proximate cause must be attributable to disregard of probable consequences, and not to a lack of care. Hall v. Mazzei, 14 Cal.App.2d 48, 57 P.2d 948.

“Failure to exercise proper precaution, or failure to exercise proper judgment in the operation of a motor vehicle, constitutes negligence only. To constitute willful misconduct, there must be a disregard of probable consequences, or a knowledge on the part of the driver that injury to a guest will probably result from the manner of the operation of the vehicle. In willful misconduct the knowledge upon the part of the driver that injury will probably result from the manner of operation of the vehicle may be actual, or the driver may be charged with such knowledge when the operation of the vehicle is in such a manner under the circumstances that it can be no other than that which will probably result in injury. Edwards v. Bodenhamer, 7 Cal.App.2d 305, 46 P.2d 202; Sanford v. Grady, 1 Cal.App.2d 365, 36 P.2d 652, 37 P.2d 475.

“Willful misconduct, like negligence, must relate to the time, place, person, and surrounding circumstances, and must be measured by them. Ordinarily, it is a question of fact for the court or jury to determine whether the driver of a motor vehicle exercised judgment or any degree of caution in the manner of his driving, or whether he drove his vehicle in utter disregard of probable injuries to his guest. Hall v. Mazzei, 14 Cal.App.2d 48, 57 P.2d 948; Gieselman v. Uhlman, 7 Cal.App.2d 409, 45 P.2d 819.

“Numerous cases have been cited to the effect that driving at a high rate of speed on a wet pavement, on curves, at intersections, and in overtaking other vehicles, was done in the exercise of a mistaken judgment resulting in disastrous consequences, and constituting negligence only. Other cases have also been cited showing lack of proper care or mistaken judgment resulting in injuries or death wherein recovery was not permitted on the ground of willful misconduct. Among these is the case of Bartlett v. Jackson, 13 Cal.App.2d 435, 56 P.2d 1298, where the driver who, proceeding along a straight and level highway in clear weather, took his eyes from the road momentarily to adjust his sleeping companion's head on the seat beside him and collided with a vehicle approaching from the opposite direction.

“On the other hand, in Norton v. Puter, 138 Cal.App. 253, 32 P.2d 172, it is held that it was willful misconduct for a driver to proceed at a high rate of speed on a wet and slippery pavement where the driver could not see on account of rain and water on the windshield accumulating thereon by reason of a defective windshield wiper.

“In Parsons v. Fuller, 8 Cal.2d 463, 66 P.2d 430, it is stated that one who, while driving an automobile, knowingly flirts with danger, and without necessity or emergency compelling him, takes a chance on killing or injuring himself or others, who may be so unfortunate as to be riding with him, is guilty of willful misconduct.

“In Frank v. Myers, 16 Cal.App.2d 16, 60 P.2d 144, it is held that the driver of a car on a city street who turned her head to the rear with the result that the car driven by her collided with one at the curb, injuring her guest, was not free from willful misconduct as a matter of law.

“On the one hand we have held in the case of Bartlett v. Jackson, that it was not willful misconduct for the driver of a motortruck to take his eyes from the road upon a straight level highway in clear weather in the face of on–coming traffic to adjust the head of a sleeping companion upon the seat beside him, and upon the other hand in the case of Frank v. Myers that the driver of an automobile upon a city street was not free from willful misconduct as a matter of law when she turned her head to the rear to converse with other occupants of the car. A situation somewhere between these two cases must designate the line marking the difference between negligence and willful misconduct. An intent to injure the guest is not a necessary element.

“In this case the driver of the automobile was proceeding down a 6 per cent. grade at a rate of speed of at least 45 miles per hour, on a wet and slippery pavement, and, under the circumstances, turned almost completely around in her seat with no observation whatever of the road ahead of her. At the time the car left the road she was not even making an attempt to observe its course ahead. The fact that it proceeded over 130 feet in a rough depression along the side of the highway, and upon striking an obstruction turned end over end, is evidence of an excessive speed. The inference is that the car must have traveled a considerable distance between the time she turned to look to the rear and before the car left the highway. No careful and prudent person would have endeavored to drive down the grade in question, wet and slippery as it was, at 45 miles per hour without his eyes on the road. Such conduct would have been negligence. In fact, there is evidence in the record that Mrs. Hofman was careless in her driving from the time she left Healdsburg where the rain commenced. In addition to this, without necessity or emergency compelling her, she knowingly and intentionally turned in her seat and left the automobile to take its course with the inevitable consequences.

“With her back turned to the direction in which the car was proceeding, it can hardly be said that she was exercising any judgment as to where or how her car proceeded. Likewise, no room was left for the exercise of any degree of care or caution in her driving. A reasonable person unquestionably would say that the defendant should have known that to turn around in her seat as she did under the circumstances and conditions surrounding the progress of her car would not only probably, but inevitably, result in injury to all the occupants of the car. The only conclusion to be reached is that her actions amounted to willful misconduct.”

For the foregoing reasons, the judgment is affirmed.

PER CURIAM.