LYNCH v. BIRDWELL (1954)

The minor plaintiff John M. Lynch, Jr. was injured he was a guest in an automobile driven by the minor defendant Jack Wayne Birdwell, which automobile plunged off the road on the way down the Mount Diablo highway. The action, based on wilful misconduct of the minor defendant, was brought for general damages of the minor plaintiff and for special damages of his father John M. Lynch, Sr., consisting of costs of treatment of his injured son. It was directed against the minor defendant and his parents, who had been instrumental in securing his driver's license, § 352, Vehicle Code. At the trial before a jury it was stipulated that the expenses incurred by the plaintiff father amounted to $3,354.16. The jury returned the following verdict:

‘We, the Jury in this case, find for the plaintiff John M. Lynch, Jr. and against the defendants and assess said plaintiff's damages against defendant Jack Wayne Birdwell in the sum of $13,354.16 and against defendants C. W. Birdwell and Geraldine Birdwell in the sum of $1,645.84.

‘And we further find for the plaintiff John M. Lynch, Sr., as and for his special damages herein and against the defendants and assess said plaintiff's damages against Jack Wayne Birdwell in the sum of $0.00 and against defendants C. W. Birdwell and Geraldine Birdwell in the sum of $3,354.16.’

On this verdict judgment was entered that plaintiff John M. Lynch, Jr., recover from the defendant Jack Wayne Birdwell the sum of $13,354.16 and from the defendants C. W. Birdwell and Geraldine Birdwell the sum of $1,645.84 and plaintiff John M. Lynch, Sr., recover from the defendants C. W. Birdwell and Geraldine Birdwell the sum of $3,354.16. Defendants appeal.

Appellants first contend that the judgment as a whole must be reversed on the ground of prejudicial errors of the court. We have found these contentions without merit. (There is no contention that the conflicting evidence does not support a judgment for plaintiffs.)

The giving of an instruction defining negligence, although the action is based on wilful misconduct only, is not erroneous because it is a normal complement to an instruction given explaining the difference between negligence and wilful misconduct. Appellants do not complain of the latter instruction (B.A.J.I. instruction 209 J) and could not do so because they themselves proposed more than one instruction comparing wilful misconduct and negligence (proposed instructions 4 and 10). Moreover the B.A.J.I. instruction given contains the following clear statement: ‘A guest may not recover against his host-driver for negligence, however it might be classified, unless that negligence amounted to wilful misconduct * * *’ Another instruction read: ‘Under our law the host is not legally obligated to his guest to exercise ordinary care in the operation of the vehicle. The driver's only legal obligation to the guest is to refrain from being intoxicated and from wilful misconduct.’ It then seems impossible that from all of the instructions taken together the jury could derive the prejudicial impression that they could hold defendants liable for negligence not amounting to wilful misconduct.

The instructions that excessive speed, under certain conditions might amount to wilful misconduct and that the speed with which defendant was driving might be considered in that respect by the jury among all the other circumstances are not erroneous. Such is correct law, Hallman v. Richards, 123 Cal.App.2d 274, 281, 266 P.2d 812, and authorities there cited and the giving of the instructions was apposite where the complaint expressly alleged reckless speed as a basis of wilful misconduct. Other instructions clearly stated the general requirements of liability for wilful misconduct.

To permit to qualify as an expert on skid marks the ranger Bassett, who was shown to have been twenty years earlier lieutenant of traffic of Santa Barbara for six years and as such to have investigated many traffic accidents there and to have investigated skid marks in a thousand cases and who at the time of the trial was Chief Ranger of Mount Diablo State Park in charge of 18 miles of roadways in the park and the investigation of the accidents there, including observation of skid marks, was within the discretion of the trial judge as to the qualification of experts; there was no manifest abuse of said discretion which alone permits an appellate court to interfere. Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 29 A.L.R.2d 485.

The mention of insurance by witnesses twice during the trial is no ground for reversal. In neither of the instances was there an objection or motion to strike or a request to declare a mistrial at the proper time. A motion for a new trial was denied.

The contentions as to prejudicial misconduct of plaintiffs' counsel are also without merit. The mentioning of the prima facie speed limit of 15 miles an hour on the curved road in question was not objectionable because it may be considered together with all other circumstances on the issue of wilful misconduct. Anderson v. Newkirch, 101 Cal.App.2d 171, 178, 225 P.2d 247. When the court ordered the jury to disregard it, plaintiffs got all they had asked for, Ades v. Brush, supra, 66 Cal.App.2d 436, at page 445, 152 P.2d 519, and more than they were entitled to. As to the other two alleged instances there is no indication of any prejudice.

Appellants next contend that the judgment in favor of the minor plaintiff is erroneous because it includes an award of $3,354.16, the stipulated amount of special damages sustained by the father, and that it gives an award of $1,645.84 against the parents of the minor over and above the award given him against the minor. The judgment follows the literal language of the verdict, but the verdict is not a normal or logical one in the action here instituted and does not conform to the instructions given.

It cannot be said that the verdict shows on its face that the jury gave the special damages claimed by the father also to the son. It seems very improbable that they would do so after special instruction, given at their request pending their deliberations, to the effect that the father was entitled to the special damages in the amount stipulated to.

Moreover such informality or insufficiency of a verdict, § 619, Code of Civil Procedure, cannot be urged on appeal if not called to the attention of the trial court when the verdict is rendered. (There is here no verdict for special damages unsupported by the evidence, as contended by appellants, because it does not appear that the recovery granted to the minor plaintiff includes special damages.)

In Brand v. Norris, 121 Cal.App.2d 367, 369, 263 P.2d 456, 457, we said: ‘The following language from Curtis v. San Pedro Transp. Co., 10 Cal.App.2d 547, 548–549, 52 P.2d 528, is apposite to this case:

“If the defendant was dissatisfied with the form of the verdict, he should have asked, at the time it was announced, that it be made formal and certain; otherwise it was the duty of the court to construe it so as to give it the effect intended by the jury, if the intended effect could be ascertained from its language, considered in connection with the pleadings and evidence * * * and as a general rule, a party will not be heard to object to a verdict for the first time on appeal from the judgment, if it is susceptible of a construction which may have a lawful and relevant effect [citation], and this case does not appear to fall within any exception to the rule.”

In this case the verdict is susceptible of the construction stated and the effect, though not perfect, seems lawful and relevant.

Judgment affirmed.

NOURSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.