SPARRER v. KERSGARD (1938)

A petition for hearing in this court after decision of the District Court of Appeal, First Appellate District, Division 2, was granted about the same time that a similar petition was granted in the case of Porter v. Hofman, Cal.Sup., 85 P.2d 447, for the purpose of giving further consideration to the contentions of the parties in both cases concerning the question whether the respective records show that the defendants were guilty of wilful misconduct. It now appears that the opinion of the District Court of Appeal herein, 79 P.2d 161, prepared by Mr. Justice Sturtevant, is a proper disposition of the question on this appeal. We therefore adopt as the opinion, in part, of this court, the following portions of that opinion:

‘This is an action for damages for personal injuries incurred by the plaintiff Louise A. Sparrer, a guest in the defendant's automobile at the time of the accident complained of. The plaintiff was a minor and her parents joined as parties plaintiff. Alfred O. Kersgard, the owner and driver of the automobile, was a minor and prior to the date of the trial his father was appointed his guardian ad litem. For the purposes of this opinion Louise A. Sparrer, the passenger, will be referred to as the plaintiff, and Alfred O. Kersgard, the driver, will be referred to as the defendant. The action was tried before the lower court sitting with a jury. A verdict was returned in favor of the plaintiff and from the judgment entered thereon the defendant appealed. In his brief he presents many points, the principal one of which is that the evidence did not warrant the jury in bringing in the verdict finding the defendant had been guilty of wilful misconduct, such as to make the defendant answerable to the plaintiff in damages under section 403 of the Vehicle Code, St.1935, p. 154.

‘On November 11, 1936, the plaintiff, a girl of eighteen years of age, was residing with her family at Willow Glen near San Jose. At that time she was in her senior year in high school. * * * Some three or four months prior to the date above mentioned the plaintiff had met the defendant. * * * During that entire period and down to the date of the accident they were ‘good friends.’

‘On November 11, 1936, no schools were held. However, the next day was school day and both parties were intending to attend their classes. The defendant had not prepared his lessons and at the time of the accident, about 8:45 p. m., was returning for the purpose of doing his home work. He owned a model ‘A’ Ford coupe. Shortly after noon he called at the residence of the plaintiff and the two went to attend a football game in the stadium at San Jose. A short time before the game was finished the plaintiff and the defendant entered the automobile and started for a drive toward the Big Trees in Santa Cruz. On the outward road they paused at Holy City and there they entered a soft drink parlor and had a drink of coca cola. Having had that refreshment they turned back to return to their homes. Between Holy City and Los Gatos, the exact place not specified in the record, the plaintiff complained to the defendant that he drove too fast. He testified that she made no other complaint on that subject during the day. The plaintiff testified she made the complaint above mentioned. She also testified that, ‘Any number of times I had cautioned him about his driving but never really told him to slow down.’ * * * The plaintiff testified that the defendant drove 50 miles an hour; sometimes that he drove at that speed around curves; and sometimes that he did not travel that fast. She testified that at times he drove on the left-hand side of the road. She did not specify any time or place except as will hereinafter be noted. She also testified that she did not drive a car, that she did not see the speedometer, that the dash light was not burning, and that during a portion of the time it was dark.

‘In presenting the case in the trial court the defendant used a diagram, defendant's exhibit ‘C’. On that diagram a section of the road leading from San Jose to Los Gatos is drawn. Another road known as Dry Creek road branches off of the former and leads to Willow Glen. The record discloses that the defendant traveled the latter road when attending the high school a year and a half previously. How frequently he traveled the road the record does not disclose. * * * Traveling northerly on the San Jose-Los Gatos road on their return, the defendant turned into the Dry Creek road which leads easterly in the direction of the plaintiff's home. Dry Creek road is located in the bottom of a cut that was formerly a creek. The former banks of the creek arise on either side. The road leads down hill on a grade of about one-half of one per cent. The road contains different curves, some to the right, and some to the left. Some of the curves are sharp. The curve where the accident happened is 85 degrees—nearly a right angle, and is a curve to the right.

‘The plaintiff testified that as they proceeded along Dry Creek road the defendant drove 50 miles an hour, that the car swayed, and that she was holding onto the seat. Continuing, she testified as follows: ‘The accident happened on a turn. As we approached that turn Mr. Kersgard took the turn as it came. I know that the car turned over. I was more or less stunned. I was not knocked unconscious. We were thrown out of the car. After the accident the car was facing the opposite direction. Before the accident the car, I imagine, was just about the middle of the road. We had been traveling about the middle. I mean we had been traveling in the center of the road. There was no white line on that road. As we approached the curve where the car left the roadway that is a sharp turn. Where the Dry Creek road leaves the San Jose-Los Gatos road there is a service station. As Mr. Kersgard came down from the service station he continued his same course of speed.’ The plaintiff did not claim she knew of the approach to the sharp turn, nor did she claim the defendant had any information on the subject.

‘The defendant testified that as he approached the turn he was driving at about 45 miles per hour, although, as he stated, he did not have a dash light and did not look at the speedometer—‘I know it was between 35 and 45 somewheres—between 35 and 40 miles when I went around this particular curve. Coming down from Santa Cruz from Holy City when there was straight-away I went 45 miles an hour and slowed down a little bit on the corners. I would not know exactly how much I slowed down because as I say there was no light on the dash and I couldn't see the speedometer. * * * As we left the intersection of the two roads I slowed down gradually and then as I got down to this straightaway I picked up speed. The car had lights and they were lit and in good order. It had brakes but after the accident I found that one of the front brakes was not very good. As I drove down the Dry Creek road I couldn't say definitely the speed I attained.’

‘One of the photographs introduced in evidence shows a telephone pole. As the road turns away from it, looking forward, the pole appears to stand in the middle of the road. Continuing, the defendant testified: ‘As we approached this curve we were talking and didn't expect anything like that, and I drove right up to it, and the lights flashed on this telephone pole and it came so unexpected and I didn't apply the brakes any. I just went around the end of the road and had my foot off the gas as I started around the corner, and didn't expect such a sharp corner. I didn't know it was going to be such a sharp curve, I didn't know where it was going to come out of; and the wheels came off the pavement after we finished the curve, and the front wheels took hold and my body went forward and I put on the brakes and it just swerved the car around. * * * As I approached this curve here which I have just described I didn't know how sharp that turn was. * * *

‘Besides the plaintiff and the defendant there was no other eye witness. Immediately after the accident and before the car was moved the traffic officers arrived. They found the car on the bank at the side of the road on the defendant's right-hand side but facing in the direction from which it had come. It had turned completely over and end for end. It stood at a point about 100 feet forward from the apex of the curve. The last 120 feet of the path of the car in the road was marked by burned rubber skid marks on the defendant's left-hand side of the road.

‘After all of the evidence had been taken the defendant made a motion that the jury be directed to bring in a verdict in his favor. The trial court denied the motion and the defendant claims the trial court erred. We think that claim is well founded. It must be conceded at once that there was evidence that defendant violated the statute prescribing the speed of motor vehicles and that he was driving on the wrong side of the road. But such facts, standing alone, do not constitute wilful misconduct. McLeod v. Dutton, 13 Cal.App.2d 545, 549, 57 P.2d 189. * * *

‘It is clear that the evidence does not disclose that the defendant, prior to entering the curve where the accident occurred, knew, or should have known, of the dangers in traversing it and therefore that the defendant is not liable. Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510.

‘In the case entitled Meek v. Fowler, 3 Cal.2d 420, at page 426, 45 P.2d 194, at page 198, the court said: ‘His conduct under the circumstances constituted, at most, gross negligence. Upon the record now before us, it cannot be said that he proceeded in utter disregard of, or that he was utterly indifferent to, the rights of his guests. While his judgment, under the circumstances confronting him, may have been poor, it does not appear that he was wantonly reckless in exposing his guests to danger, nor did his conduct partake of the nature of a willful, intentional wrong.’ That language is peculiarly applicable to the facts in the instant case.'

Even if it be assumed that the defendant knew or should have known of the curves on the road then being travelled, there is nothing in the facts to indicate that he was conscious or should have known that injury to his guest was a probable result so as to constitute his actions wilful misconduct, as defined in the cases cited herein and in Porter v. Hofman, Cal.Sup., 85 P.2d 447, this day decided, wherein cases such as relied upon by the plaintiffs are distinguished.

The judgment is reversed.

We concur: WASTE, C. J., LANGDON, J.; EDMONDS, J.

I dissent from the judgment of reversal. The defendant wilfully refused to exercise reasonable care or consideration for the safety of his invited guests and others while conducting an automobile. The many safety provisions of the Motor Vehicle Act are intended to bring under regulation an increasingly menacing situation. The decisions which practically hold that the driver of a car is not liable to the person whom he invites to ride with him and injures by wilful disregard of the plain and obvious hazards in the manner and circumstances shown herein do not in my judgment reflect the legislative intent. A driver should not be immuned from the consequences of his misconduct when it appears beyond question that he wilfully and intentionally did what no reasonable person should have done or would be expected to do. The defendant persisted in misconduct despite the fact that the young lady whom he took into his care called to his attention the dangers which resulted in her injury. The distinction which some courts have attempted to draw between gross negligence and wilful misconduct shades into faint lines. It seems absurd to say that a person who wills to assume an obvious hazard is not guilty of wilful misconduct. Certainly laymen are not able to see the fine distinctions which courts are able to find by the aid of the judicial microscope. To prevent the jury following what would seem to be a natural interpretation of the statute in the mind of the average man it becomes necessary in this case, and it will be necessary in others, to direct a verdict for the defendant or reverse the finding of the jury in practically every case in which wilful misconduct is an issue. It is not easy to believe that the statute intended to require that the defendant must, in effect, declare that he intended to injure the person he invited to ride with him in order that she may recover compensation for her loss. Cases involving wilful misconduct present questions of fact and should not be taken from the jury's consideration nor reversed after a jury has rendered its verdict unless there is greater reason for so doing than appears from the facts in the instant case.

The instant case on important facts is very much like the cases of Jackie Coogan Productions, Inc. v. Industrial Accident Commission, 21 Cal.App.2d 225, 68 P.2d 750 (hearing denied by this court) and Parsons v. Fuller, 8 Cal.2d 463, 66 P.2d 430, wherein the question of wilful misconduct as applied to drivers of automobiles over mountainous and tortuous roads was carefully considered. The judgments in both cases were affirmed. I am therefore of the opinion that the judgment in the instant case should likewise be affirmed.

SHENK, Justice.

I dissent: HOUSER, J.