COPE v. DAVISON (1946)

The plaintiff appeals from a judgment for the defendant entered upon the verdict of a jury. The action was one for personal injuries brought under the guest statute (Vehicle Code, § 403) and counted on wilful misconduct.

Respondent argues that there was no evidence produced which would have supported a judgment for the plaintiff. The evidence was conflicting but if the jury believed the evidence favorable to the plaintiff's case we are satisfied that a verdict for the plaintiff would find ample support. The parties and defendant's wife were going on a hunting trip in an automobile driven by defendant. They stopped in Woodland and left Woodland, going north, at about 11 p.m. A light rain was falling. A few miles north of Woodland there is a rather sharp turn in the road which is almost level, hardly banked at all. About 500 feet south of this turn there is a sign indicating the approaching curve and warning motorists to slow down to 25 miles per hour. Defendant had been over the road many times, was familiar with the curve, saw the sign that night and knew that the curve was ahead. According to plaintiff's testimony defendant proceeded toward this curve at a speed of 45 miles per hour and at no time slackened his speed until the casualty occurred. About 60 to 80 feet from the curve the car skidded slightly, defendant decided that he could not make the turn, drove the car straight ahead through a fence and the front end dropped into a ditch on the other side. This was one of the season's first rains. Defendant testified that he knew that farmers in the vicinity were in the habit of driving their equipment across the highway leaving dirt thereon, that oil was also deposited on the highway by motor vehicles, and that an early rain would make the highway slipery where either dirt or oil had been deposited. Defendant also gave the following testimony:

‘Q. Well, you knew as you approached the turn that night that even when the streets were dry, it was a very dangerous turn unless you drive around the turn very slowly, did you not? A. That is correct.

‘Q. And you knew that from having been over that road these hundreds of times? A. That is correct.’

This evidence would support the conclusion that defendant on a wet road, with the knowledge that it might be slippery and cause his car to skid, intentionally and deliberately drove his car toward the curve at 45 miles per hour, knowing that the curve was there and knowing that even on a dry pavement it was a dangerous curve unless approached very slowly.

‘There are conflicting statements in the decisions which undertake to define ‘wilful misconduct.’ But on consideration of the cases on the subject, and reconciling them as far as possible, we find them to divide ‘wilful misconduct’ into two distinct lines of action, either of which will render a driver liable to his guest for its results, as follows: first, ‘the intentional doing of something * * * with a knowledge that serious injury is a probable (as distinguished from a possible) result’; and, second, ‘the intentional doing of an act with a wanton and reckless disregard of its possible result.’ Both of these statements are quoted from Howard v. Howard, 1933, 132 Cal.App. 124, 129, 22 P.2d 279, 281 (emphasis by the court there), and have been approved in the many later cases reviewed in People v. Nowell, 45 Cal.App.2d Supp. [811], at pages 815 and 816 (114 P.2d 81).' Van Fleet v. Heyler, 51 Cal.App.2d 719, 727, 125 P.2d 586, 590.

Under this definition which has become standardized in this state by repeated decisions the evidence above summarized was ample to support a finding of wilful misconduct.

Appellant proposed an instruction that:

‘If you believe under the evidence in this case that the defendant Warren W. Davison intentionally did something or omitted to do something, in the operation of his automobile on the night in question, with knowledge express or implied, that injury to plaintiff was a probable consequence of his intentional act or failure to act, then I instruct you that defendant was guilty of wilful misconduct.

‘I instruct you that in determining whether the said intentional act or omissions of said defendant, if such you find them to be, are sufficient to disclose implied knowledge of such probability of injury to plaintiff guest, an external standard is applied, and applying the ‘external standard’ the defendant Warren W. Davison is charged with knowledge of the probable consequences of his conduct, such consequence being apparent to any person of ordinary prudence of which you ladies and gentlemen of the jury are the exclusive judge.'

The court was also asked to give several instructions qualifying the necessary knowledge of probable injury to the guest by the participial adjectives ‘express or implied’ and the words ‘express or implied’ were stricken by the court. Another proposed instruction contained this language:

‘It is enough if at the time and place of the happening of this accident that he knew, or should have known, of circumstances which would bring home to the realization of the ordinary reasonable man the highly dangerous character of his conduct * * *.’

This instruction the court also refused to give.

As a result, by the instructions given to them, the jury was informed that in order to find defendant guilty of wilful misconduct they must find that he had actual knowledge that the probable consequence of his intentional conduct would be an injury to plaintiff.

This is contrary to the law as it has been developed by the decisions. This court in Rawlins v. Lory, 44 Cal.App.2d 20, 24, 25, 111 P.2d 973, 975, said:

‘It is not necessary that there be a deliberate intention on the part of the driver to injure the guest, but it is essential that there be an intentional act or omission on his part under circumstances disclosing the requisite knowledge, express or implied, of the probability of injury to the guest. In determining whether the circumstances are sufficient to disclose implied knowledge of such probability, an external standard is applied. In Stacey v. Hayes, 31 Cal.App.2d 422, 88 P.2d 165, one of the authorities relied on by defendants, the court said at page 426, of 31 Cal.App.2d, at page 167 of 88 P.2d, ‘The probability of injury to the guest from such act or omission must have been an apparent consequence to a man of ordinary prudence and intelligence.’ * * * The probability of injury to a guest from such conduct is an apparent consequence to any person of ordinary prudence and, applying the external standard above mentioned, any driver engaging in such conduct is charged with implied knowledge of the probability of such injury.'

The question was considered again and the authorities exhaustively reviewed in Van Fleet v. Heyler, supra, 51 Cal.App.2d 719, 125 P.2d 586. We quote from 51 Cal.App.2d pages 727–729, 125 P.2d at page 591:

‘The first alternative stated in Howard v. Howard, supra, doing an act with knowledge of its probable results, etc., is qualified by the cases to this extent, that the knowledge may be either express or implied. Turner v. Standard Oil Co., 1933, 134 Cal.App. 622, 626, 25 P.2d 988. This case is approved on this point in many later cases, including Meek v. Fowler, 1935, 3 Cal.2d 420, 425, 45 P.2d 194; Weber v. Pinyan, 1937, 9 Cal.2d 226, 233, 70 P.2d 183, 112 A.L.R. 407; Robertson v. Brown, 1940, 37 Cal.App.2d 189, 194, 99 P.2d 288; Stacey v. Hayes, 1939, 31 Cal.App.2d 422, 426, 88 P.2d 165; Francesconi v. Belluomini, 1938, 28 Cal.App.2d 701, 703, 83 P.2d 298; Gimenez v. Rissen, 1936, 12 Cal.App.2d 152, 157, 55 P.2d 292; Hagglund v. Nelson, 1937, 23 Cal.App.2d 348, 352, 73 P.2d 265; Haas v. Jones, 1938, 29 Cal.App.2d 650, 652, 85 P.2d 579; and Rawlins v. Lory [1941, 44 Cal.App.2d 20, 24, 111 P.2d 973]. The same rule has been expressed by use of the words ‘actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge.’ Parsons v. Fuller, 1937, 8 Cal.2d 463, 468, 66 P.2d 430, 433; Porter v. Hofman, 1938, 12 Cal.2d 445, 448, 85 P.2d 447; Stacey v. Hayes, supra; Howard v. Howard, supra; and other cases referred to in those last cited. In Stacey v. Hayes, supra * * *, this thought is amplified by the statement that ‘The probability of injury to the guest from such act or omission must have been an apparent consequence to a man of ordinary prudence and intelligence.’ This language was quoted in Rawlins v. Lory, supra, with the further comment that ‘In determining whether the circumstances are sufficient to disclose implied knowledge of such probability, an external standard is applied’ and it was held by applying this ‘external standard’ that the defendant there was charged with knowledge of the probable consequences of his conduct, such consequences being apparent to any person of ordinary prudence. This standard was applied in Jones v. Hathway, 1937, 22 Cal.App.2d 316, 320, 70 P.2d 681, 683, where the court said that ‘as a presumably reasonable man, had he exercised due care, defendant must have known, or must have been conscious of and appreciated the fact that to drive * * * (as he did) was likely to result in injury to plaintiff.’ The same view is set forth in the Restatement of the Law of Torts, in comment c. appended to section 500, as follows: ‘In order that the actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous. His inability to realize the danger may be due to his own reckless temperament or to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.’ (p. 1295.)

‘Our attention has been particularly called to the following quotation from Porter v. Hofman, 1938, 12 Cal.2d 445 [448], 85 P.2d [447], a misconduct case: ‘Before liability arises there must be shown actual knowledge, or its equivalent, on the part of the defendant of peril to be apprehended coupled with a conscious failure to act to the end of averting injury.’ The latter part of this sentence cannot have been intended to take away the effect of the previous reference to the ‘equivalent’ of actual knowledge, for in the next preceding paragraph we find the same reference, and also an approving quotation from another case * * * of this expression of the same thought; ‘that which in the law is esteemed to be the equivalent of actual knowledge.’ In other words, even if some logical inconsistency can be found between the two parts of the sentence first quoted, the latter part of it, when considered with all the other parts of the opinion, does not carry with it the implication that actual knowledge by the driver of impending danger is necessary to constitute wilful misconduct. It means no more than this statement from Stacey v. Hayes, 1939 [31 Cal.App.2d 422, 426, 88 P.2d 165], (in which a hearing was denied by the Supreme Court a few months after the decision of the Porter case): ‘Though there need be no actual conscious intent to injure the guest, the act done or the omission made must be intentional. The probability of injury to the guest from such act or omission must have been an apparent consequence to a man of ordinary prudence and intelligence.’ In the case at bar the jury could have found that when the defendant failed to slow down as he approached the pack station, as well as when he increased his speed just before that time, he acted consciously and intentionally and that the probability of injury to his guests under the then existing circumstances must have been apparent to a man of ordinary prudence and intelligence.'

On page 730 of the same opinion in 51 Cal.App.2d, on page 59, of 125 P.2d, the court held an instruction given by the court to be erroneous, using the following language:

‘Plaintiff contends that many of the instructions on the subject of wilful misconduct are erroneous. We find that several of them are not entirely consistent with the foregoing discussion of that term, but since a new trial must be had, at which the instructions can be made to conform to the law on this point as above stated, it is not necessary to discuss in detail all those complained of. One of them, given at defendant's request, reads as follows: ‘There can be no wilful misconduct unless the defendant himself realized that there was a probability, as distinguished from a mere possibility, of injury to the occupants of his car from his conduct. Even proof of such probability of injury will not alone establish such realization on his part. There must be a conscious disregard of probable consequences. You may, however, consider all of the surrounding circumstances in ascertaining such realization.’ This instruction was erroneous in at least two respects. By making it a condition of liability that defendant himself ‘realized’ the probable consequences of his conduct, it withdrew from the consideration of the jury ‘implied knowledge’ on defendant's part, that is, the possible inference that a man of ordinary prudence and intelligence would have realized those probable consequences, even though defendant himself did not, and thus ran counter to the first branch of the definition of wilful misconduct, as above stated; and by excluding from consideration the possibility of injury to a guest, and defendant's reaction thereto, it contravened the second branch of that definition.'

The supreme court denied a hearing in this case and its correctness has not been questioned in any later decision. It was cited and followed in Hastings v. Serleto, 61 Cal.App.2d 672, 681 and on pages 687, 688, 143 P.2d 956, on page 963 the court in the Serleto case approved an instruction that ‘a driver is charged with knowledge of the probable consequences of his conduct, if such consequences would have been apparent to any person of ordinary prudence and intelligence.’

The jury's verdict was reached by a vote of 9 to 3. It is obvious that the jurors who voted for the defendant may have concluded that defendant intentionally approached this dangerous curve at 45 miles per hour but without the conscious realization or actual knowledge of the probability of injury to his guest. It is equally obvious under the facts that if properly instructed the same jurors might have found that such probability of injury would have been apparent to any person of ordinary prudence. The failure to instruct them that in determining whether defendant had implied knowledge of probable injury to his guest they should apply the external standard of what would be apparent to a person of ordinary prudence must be held to be prejudicial error.

This error was not cured by the giving of the following instruction:

‘When there is a question whether a vehicle driver conducted himself with knowledge that serious injury to a guest probably would result from the conduct, proof of such knowledge does not have to be by direct evidence. The jury has a right to infer that the driver had such knowledge, if such an inference may reasonably be drawn from facts in evidence, and if the judgment of the jury so directs.’

To instruct the jury that defendant must have actual knowledge is an instruction on a substantive fact which they are told must be proved to establish plaintiff's right to recover. To further instruct them that this actual knowledge may be proved by circumstantial evidence does not change the fact that under the instructions they must still find actual knowledge, and is not in any sense the same thing as telling them that they need not find that the defendant had actual knowledge if they do find that a person of ordinary prudence would have had such knowledge.

A similar instruction in Van Fleet v. Heyler, supra (‘You may, however, consider all of the surrounding circumstances in ascertaining such realization’), was not considered by the court in that case to cure the error of the instruction that actual knowledge of probable injury must be proved.

Over plaintiff's objection defendant was permitted to testify that he did not intend to have an accident, did not intend to injure his wife and did not intend to injure his friend, the plaintiff. Although intent to injure is not a necessary element of wilful misconduct, the state of mind of the driver is a material factor, and we are not prepared to hold that the giving of this testimony was prejudicial error. But it did have the effect of impressing on the jury the actual, as distinguished from the implied, state of the defendant's mind. The jury might reasonably conclude that one who did not intend to have an accident or injure his passengers would not intentionally do an act with actual knowledge that an accident and injuries would probably follow. If instructed on the external standard of what would be apparent to the ordinarily prudent person they might have reasonably concluded that although defendant had no actual knowledge of the probable consequence of his acts, any person of ordinary prudence would have had such knowledge.

Judgment reversed.

I dissent because I believe the instructions were sufficient.

The definition of wilful misconduct approved in Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194, 197, speaks of the driver's ‘knowledge, express or to be implied, that an injury to a guest will be a probable result’ of his conduct. The instructions which were given omit the words ‘express or to be implied,’ but the instruction quoted near the end of the prevailing opinion, in my view, not only completely bridged the gap left by the omission of those words, but conveyed the same meaning even better than the omitted words could have conveyed it. It read: ‘When there is a question whether a vehicle driver conducted himself with knowledge that serious injury to a guest probably would result from the conduct, proof of such knowledge does not have to be by direct evidence. The jury has a right to infer that the driver had such knowledge, if such an inference may reasonably be drawn from facts in evidence, and if the judgment of the jury so directs.’ (Emphasis mine).

The prevailing opinion says: ‘To instruct the jury that defendant must have actual knowledge is an instruction on a substantive fact * * *.’ Nowhere does this instruction, nor do any of the others, say actual knowledge. When this instruction told the jury that proof of knowledge does not have to be by direct evidence, but can be inferred, it told them (in almost so many words) that the driver's knowledge can be implied. If it can be implied, then of course it need not be actual knowledge. Hence I can not agree with the statement that ‘To further instruct them that this actual knowledge may be proved by circumstantial evidence does not change the fact that under the instructions they must still find actual knowledge * * *.’ Nothing in any of the instructions, I submit, had the effect of telling the jury ‘they must still find actual knowledge.’ When the instruction told them they could find that the defendant had knowledge of probable injury by inference, it certainly meant entirely by inference ‘if the judgment of the jury so directs.’ In State v. Millain, 3 Nev. 409, 450 (also reported in Vol. 3–4, Nev., Hawley, 371, 405) the court, speaking through Chief Justice Beatty, said: ‘There is nothing wrong in the definition of murder in the first degree, as given by the Court to the jury—at least nothing to mislead the jury. There is no real distinction in the meaning between the word ‘inferred,’ as used by the Court, and ‘implied,’ as used in the statute.'

It is of no consequence that this instruction states a rule of evidence rather than of substantive law, for the judge performs his duty when he states the law, however it may be catalogued or classified by lawyers, and the jury could not be concerned with such legal refinements so long as they are given a rule to guide them.

In a case involving the phrase ‘malice, express or implied’ as used in sec. 3294, Civ.Code, dealing with exemplary damages, the court in Davis v. Hearst, 160 Cal. 143, 162, 116 P. 530, 539, said: ‘It should be apparent that the malice, and the only malice, contemplated by section 3294 is malice in fact, and that the phrase ‘express or implied’ has reference only to the evidence by which that malice is established; ‘express malice’ thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill will; ‘implied malice’ referring to the indirect evidence from which the jury may infer the existence of this malice in fact.'

The court thus treats ‘express' as synonymous with ‘direct’ and ‘implied’ as synonymous with ‘inferred.’

A number of later cases defining wilful misconduct, in speaking of knowledge, entirely omit the modification express or implied. In 1942 the Supreme Court in People v. Young, 20 Cal.2d 832, 836, 129 P.2d 353, 355, said that: ‘The most acceptable definition of wilful misconduct is stated in Howard v. Howard, 132 Cal.App. 124, 129, 22 P.2d 279, 281, as follows: ‘But willful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.’' In Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447, 448, the court says: ‘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 * * *.' This last definition is held in Van Fleet v. Heyler, 51 Cal.App.2d 719, 728, 125 P.2d 586, to be simply an expression of the same rule as that contained in the phrase ‘knowledge, express or to be implied.’

With respect to the claimed failure to instruct on the so-called ‘external standard,’ the instruction discussed above told the jury in substance and effect that they could draw their own inferences, and could charge the driver with knowledge ‘if the judgment of the jury so directs.’ That gave them plenty of lee-way. If the jury inferred from the facts that he should have known of the peril, they would, in reaching this conclusion, be simply drawing on their own experience, observation and common sense as twelve ordinarily prudent men and women. The opinion in Van Fleet v. Heyler recognizes this. In its criticism of an instruction which said, inter alia, that ‘There can be no wilful misconduct unless the defendant himself realized that there was a probability, as distinguished from a mere possibility, of injury,’ the court said (at page 730 of 51 Cal.App.2d, at page 592 of 125 P.2d), ‘By making it a condition of liability that defendant himself ‘realized’ the probable consequences of his conduct, it withdrew from the consideration of the jury ‘implied knowledge’ on defendant's part, that is, the possible inference that a man of ordinary prudence and intelligence would have realized those probable consequences, even though defendant himself did not, and thus ran counter to the first branch of the definition * * *.' The jury in the case at bar was, I repeat, fairly instructed on implied knowledge, and on these other subjects as well, by and through this instruction as to their right to draw inferences.

DOOLING, Justice.

NOURSE, P. J., concurs.