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Court of Appeal, First District, Division 3, California.

Dale D. SCHWALBE and Leone M. Schwalbe, Plaintiffs and Appellants, v. Thomas H. JONES, Jr., Defendant and Respondent.

Civ. 29652.

Decided: November 09, 1973

Herbert Resner, Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, for plaintiffs and appellants. Gassett, Perry, Katzen, Frank & Bondelie, San Jose, for defendant and respondent.

Dale and Leone Schwalbe (appellants) brought an action for the wrongful death of their daughter, Patricia Schwalbe Jones (decedent), against Thomas H. Jones, Jr., decedent's husband of twelve days (respondent). At the close of appellants' case, the trial court granted respondent's motion for nonsuit as to appellants' negligence cause of action, but denied the motion as to their cause of action for willful misconduct. The jury returned a verdict for respondent, and judgment was entered thereon.

The action arises out of an automobile accident which occurred on an Oakland freeway on June 13, 1967. Respondent was driving a 1964 Triumph roadster which he had bought new, but which he had sold to decedent prior to their marriage on June 1, 1967. Respondent was towing a Renault also owned by decedent in which she riding as a passenger, and which was being steered by Albert Pol. The towline, a nylon strap, broke; the Renault went off the freeway, turned over and fatally injured decedent. Respondent was not injured; Pol suffered a lower back injury.

The Renault had been inoperative for about six months prior to the accident. Respondent had prevailed upon decedent to dispose of it, and she had decided to tow it to Saratoga to give it to a friend. Either respondent or decedent had obtained the nylon towline from Pol.

Pol and respondent testified that they asked decedent to ride in the lead vehicle. She refused and insisted on riding in the Renault. In fact, they said that she had wanted to steer the Renault, but had agreed to let Pol do it. The accident occurred after they had been traveling for about one mile. Pol stated that up to that point the tow had proceeded smoothly, the towed vehicle following straight behind the lead vehicle. Jones testified that he was attentive to the speedometer and that he was driving the Triumph at 49 miles per hour. We need not review the evidence in further detail. It is sufficient, for purposes of this decision, to point out that the evidence and inferences therefrom, viewed in the light most favorable to appellant, were sufficient to indicate negligence on the part of respondent. The trial court granted nonsuit as to the court for negligence upon the ground that the guest statute (Veh.Code, § 17158) barred recovery.

Appellants, however, rely upon the recent decision (Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212), which held the guest statute to be unconstitutional in part, and contend that the trial court erred in granting respondent's motion for nonsuit on their negligence cause of action and in instructing the jury in accordance with the automobile guest statute. At the time of trial, section 17158 read: ‘No person riding in or occupying a vehicle owned by him and driven by another person with his permission and no person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the owner or guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or willful misconduct of the driver.’ Brown declared the guest statute unconstitutional insofar as it applied to guests who were not owners, but as to an owner riding in his own car being driven by another person with his permission, the court expressly declined to rule on the validity of the statue. (8 Cal.3d 855, 862, fn. 3, 106 Cal.Rptr. 388, 506 P.2d 212.)1 In Patton v. La Bree, 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398, cited in Brown, 8 Cal.3d at p. 864, fn. 4, 106 Cal.Rptr. 388, 506 P.2d 212, our Supreme Court upheld the validity of the owner portion of the guest statute in the face of an attack upon its constitutionality. Patton found a rational basis for treating owners differently than other guests: ‘The relationship between a driver and the owner of the car who is a passenger is obviously different from that existing between a driver and a passenger who is not an owner. In making the distinction between owner-passengers and nonowner-passengers, the Legislature may have taken into consideration the fact that an owner generally has the right to direct control the driver, but a nonowner ordinarily does not have that right.’ (Ibid.)

Thus, the Supreme Court has held the owner portion of the guest statute constitutional, and in Brown v. Merlo, the court expressly declined to overrule its previous decision as to that provision. We are bound to follow the decisions of the Supreme Court, and on the authority of Patton v. La Bree, supra, we cannot sustain appellants' attack on the constitutionality of the guest statute as it now stands. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Although our research reveals no previously reported case involving the application of the guest statute to a towing situation, under the facts of this case it is reasonable to view the two vehicles as one for purposes of the statute. The decedent owned both the towed vehicle, in which she rode, and the towing car, driven by respondent. Thus, she was a person riding in a vehicle owned by her and being driven by respondent with her consent. (See, generally, Neuser v. Britto, 237 Cal.App.2d 444, 447, 46 Cal.Rptr. 898.) It follows that the trial court properly applied the guest statute, and that its decision to allow the case to go to the jury only a theory of willful misconduct was correct.

Appellants claim that the trial court erred in its instructions to the jury on the issue of willful misconduct. The court properly instructed the jury on the definition of that term as applied in guest statute situations, but refused appellants' request that it read to the jury certain sections of the Vehicle including the basic speed law and provisions relating to towed vehicles. The court did not err. Violation of a statutory duty alone does not constitute willful misconduct. (People v. Young, 20 Cal.2d 832, 838, 129 P.2d 353; Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447.) A mere reading of the Vehicle Code provisions clearly would have been misleading to the jury, as they reasonably could have been expected to infer that violations thereof constituted willful misconduct. Failure to perform a statutory duty may be substantial evidence of willful misconduct when coupled with other circumstances (Jones v. Ayers, 21 Cal.App.2d 646, 650, 28 Cal.Rptr. 223), but appellants did not request an instruction to that effect. It was incumbent upon appellants, and not the court, to formulate a proper qualifying instruction if they desired the court to read portions of the Vehicle Code. (Barrera v. De La Torre, 48 Cal.2d 166, 170, 308 P.2d 724; Gagosian v. Burdick's Television & Appliances, 254 Cal.App.2d 316, 318, 62 Cal.Rptr. 70.)

The trial court properly instructed the jury on the definition of willful misconduct, in accordance with BAJI No. 5.68. A further instruction utilizing the language of Williams v. Carr, 68 Cal.2d 579, 68 Cal.Rptr. 305, 440 P.2d 505, as requested by appellants, was unnecessary and may have placed undue emphasis on the lack of requirement of intent to injure.

Judgment affirmed.


1.  We note that section 17158 has been amended to delete that portion which the Supreme Court has declared unconstitutional, but retaining the provisions applicable to the owner occupier. (Stats.1973, ch. 803, p. ___.)

DRAPER, Presiding Justice.