Cope v. Davison

180 P.2d 873, 30 Cal. 2d 193, 171 A.L.R. 667, 1947 Cal. LEXIS 162

• Court: California Supreme Court
• Decided: May 29, 1947
• Docket: S. F. 17391
• Status: Published

Opinions

EDMONDS, J.

J. Hallam Cope sued to recover damages for personal injuries sustained in an automobile accident. In the complaint, Cope alleged that at the time he sustained the injuries, he was a guest of Warren W. Davison, who was operating the automobile in which they were traveling. The principal attack upon the judgment in favor of the driver concerns the definition of “wilful misconduct” stated in the instructions to the jury.

The evidence" is conflicting. Davison and his wife, traveling by automobile, started on "a hunting trip. . Cope accompanied them as their guest. Davison was driving the car. Toward midnight, as a light rain was falling, the party approached a sharp turn in the highway. A sign at that point warned motorists to slow down to 25 miles per hour. Davison was familiar with the curve, having been over the road many times. He saw the sign and knew that the curve was ahead. He also knew that in rainy weather the road was slippery, either because the dust had become wet or on account of oil on the highway. According to his testimony, under such circumstances, the turn was dangerous if not driven around very slowly.

Cope’s account of the accident was that as they approached this-point, Davison drove at a speed of 45 miles per hour. About 60 to 80 feet from the curve the car skidded slightly and Davison, deciding that he could not make the turn, drove the car straight ahead through the fence and into a ditch. At no time before the accident did he slacken the speed of the car, according to Cope. Davison, on the other hand, testified that he slowed down to about 20 miles an hour as they approached the turn. He was traveling at “the normal safe speed to make a turn” when the car started to skid, according to his testimony, and he “thought the safest thing to do, as long as . . . [the car was] . . . sliding this way, would be to go straight ahead.”

Following a verdict for Davison and entry of judgment, Cope made a motion for a new trial. The grounds of this motion included irregularities in the proceedings of the court and errors in law occurring at the trial. The motion was denied.

The appellant contends that the instructions were erroneous because the jurors were not informed in regard to the kinds of knowledge as to the probability of injury which may constitute wilful misconduct within the meaning of section 403 of the Vehicle Code. Only rarely, says the appellant, does a defendant admit that he operated his automobile with actual knowledge of probable injury to the occupants of the vehicle. For that reason, the argument continues, ordinarily, a guest must prove his cause of action by showing facts from which knowledge of probable injury may be implied. In the present case, it is pointed out, the instructions did not define wilful misconduct as a wrongful act done with the knowledge, express, or to be implied from the circumstances, that injury might result.

As a further ground for the reversal of the judgment, Cope assigns as erroneous the ruling whereby Davison was allowed to testify, over objections, that he did not intend to have an accident, did not intend to injure Cope, and did not intend to injure anyone, including his wife, who was in the car. A third point relied upon is that counsel for Davison was guilty of prejudicial misconduct which prevented a fair trial. The determination of the court upon each of these matters, Cope asserts, amounts to prejudicial error entitling him to a new trial.

The respondent insists that the instructions defining wilful misconduct are complete and accurate. There is no magic in the words “express or implied,” he says, and the equivalent of these words was given in other instructions. The jurors might infer, they were told, that the driver had such knowledge, and presumably, they considered the instructions as a whole. Furthermore, it is argued, the courts have not invariably used the expression “express or implied” in regard to wilful misconduct and the equivalent of the so-called “external standard” was stated to the jury.

Upon the second issue, Davison takes the position that whenever evidence of the motive or intent with which an act is done is relevant, direct testimony of the party whose conduct is under attack is admissible, although not conclusive. Accordingly, he says, it is proper to interrogate one charged with wilful misconduct relative to his mental attitude, and knowledge of the probable consequence of his act, if this inquiry relates to the condition of mind prior to or simultaneously with the accident.

Davison’s answer to the criticism in regard to the alleged misconduct of counsel is that no complaint was made during the trial concerning either statements or argument, and no instructions thereon were requested. Under these circumstances, it is said, the record as to the asserted misconduct is not subject to review, and the trial court’s ruling in denying a motion for a new trial on this point will not be disturbed unless it is plainly wrong. Upon the merits of the question, it is asserted that counsel was not guilty of misconduct.

The jury was instructed as follows: “ ‘Wilful misconduct’ is defined as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge on the part of the driver that injury to his passenger will be a probable result of his conduct or under circumstances disclosing a wanton and reckless disregard of the possible injurious results of his conduct.

“The terms ‘wilful misconduct’ have a meaning in the law, additional to that which they have in common usage. If we were to use the words in their ordinary sense, they would mean simply the indulging in wrongful conduct by conscious choice. Such conduct might consist of doing something which ought not to be done, or in failing to do something that ought to be done. But in order to be a basis for liability to a guest under our law the misconduct must be something more than intentional and wrongful; it must be done under circumstances which show either knowledge that serious injury to the guest probably will result, or a wanton and reckless disregard of the possible results.

“Wilful .misconduct means intentional wrongful conduct, done either with knowledge that serious injury to the guest probably will result, [or] with a wanton and reckless disregard of the possible results.

“Although wilful misconduct is a form of negligence, it is something more than negligence; more even than what might be called gross negligence. A guest may not recover against his host driver for negligence; however, it might be classified, unless that negligence amounted to wilful misconduct, then that means intentional, wrongful conduct, done either with knowledge that serious injury to the guest probably will result, or with a wanton and reckless disregard of the possible results.

“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.”

These instructions, it is said, built up in the minds of the jurors the requirement of actual knowledge and a specific intent in order to constitute wilful misconduct. The deficiency in the definition of the standard of care required of Davison was not cured by the statement that the jurors might infer knowledge on the part of the driver as it presented merely a rule of evidence for their guidance. The second instruction was confusing, and the third one erroneous, says the appellant, because it leaves out the important word “or” and thus fails to distinguish between the two types of wilful misconduct. The appellant contends that his proposed instructions, refused by the trial court, would have cured these errors.

Wilful misconduct has been defined in various ways. In People v. Young, 20 Cal.2d 832, 836 [129 P.2d 353] (quoting from Howard v. Howard, 132 Cal.App. 124, 129 [22 P.2d 279]), it was said: “ ‘Wilful 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. ’ ” By two earlier decisions, Porter v. Hofman, 12 Cal.2d 445, 448 [85 P.2d 447], and Parsons v. Fuller, 8 Cal.2d 463, 468 [66 P.2d 430], this court adopted the language of Helme v. Great Western Milling Co., 43 Cal.App. 416, 421 [185 P. 510], saying: “The term ‘serious and wilful misconduct’ is described by the supreme court of Massachusetts as being something ‘much more than mere negligence, or even gross or culpable negligence’ and as involving ‘conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences.’ . . . To constitute ‘wilful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.” In the Porter case, supra, the court stated: “To this must be added the element included in the definition approved in Meek v. Fowler, 3 Cal.2d 420, 425 [45 P.2d 194], and cases following it, of actual knowledge or its equivalent that an injury to a guest will be a probable result.” The Meek case followed Turner v. Standard Oil Co., 134 Cal.App. 622, 626 [25 P.2d 988], and defined wilful misconduct “. . . as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.”

A full discussion of these definitions is found in Van Fleet v. Heyler, 51 Cal.App.2d 719, 727 [125 P.2d 586], where the court said: “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], and have been approved in the many later cases reviewed in People v. Nowell, 45 Cal. App.2d (Supp.), pp. 815 and 816 [114 P.2d 81].”

Measured by these definitions, the instructions in the present case were not erroneous. The most recent opinion of this court (People v. Young, supra) defining wilful misconduct entirely omits the words “express or implied” when referring to knowledge of the defendant. Furthermore, the last quoted instruction, which was offered by Cope, bridged the gap left by the omission of these words. As stated in this instruction, the jury might infer knowledge by the driver that serious injury to a guest probably would result from his conduct, if such an inference could reasonably he drawn from the facts in evidence. The courts have treated “inferred” as synonymous with “implied” (see Davis v. Hearst, 160 Cal. 143, 162 [116 P. 530]; State v. Millain, 3 Nev. 371, 405), and it is presumed that the jury considered the instructions as a whole. (Douglas v. Southern Pacific Co., 203 Cal. 390, 396 [264 P. 237]; Stroud v. Hansen, 48 Cal.App.2d 556, 562 [120 P.2d 102].)

In the Van Fleet case, supra, it was said that, for the purposes of determining whether the circumstances in a given situation are sufficient to disclose implied knowledge of the probability of injury from an act or omission, an external standard is applied. Such a probability, it was concluded, using the language of Stacey v. Hayes, 31 Cal.App.2d 422, 426 [88 P.2d 165], “ ‘must have been an apparent consequence to a man of ordinary prudence and intelligence.’ ” Considering the present record, the last quoted instruction advised the jury, in substance, that they might draw their own inferences, and could charge the driver with knowledge “if the judgment of the jury so directs.” This instruction presented for determination as an issue of fact the question as to whether Davison had implied knowledge of the probable consequences of his conduct. It allowed the jurors to draw from the evidence the inference that a man of ordinary prudence and intelligence would have realized the probable consequences of his conduct even though Davison himself did not do so.

Read as a whole, the instructions to the jury correctly and sufficiently disclosed the intention necessary to prove wilful misconduct, and they were neither misleading nor confusing. The failure to include the word “or” between the two types of wilful misconduct in one of the instructions was probably a typographical error. In any event, it was cured by the other instructions which clearly distinguished between the kinds of conduct which fall within the statutory ban.

The objections to the questions asked of Davison concerning his intention to cause injury were made upon the grounds that they were immaterial, constituted an invasion of the province of the jury, and were leading and suggestive. Cope insists that “an intent to have an accident or an intent to injure” anyone is not an element of wilful misconduct, and, therefore, the questions were immaterial. The prejudicial effect of this testimony was increased, the appellant argues, by the definition of wilful misconduct given to the jury.

The state of mind of a person, like the state or condition of the body, is a fact to be proved like any other fact when it is relevant to an issue in the case, and the person himself may testify directly thereto. (See 29 Am.Jur. 312.) Whenever the motive or intent with which an act was done is relevant, direct testimony is admissible, although not conclusive. (Harned v. Watson, 17 Cal.2d 396, 403 [110 P.2d 431]; Gilmour v. North Pasadena Land etc. Co., 178 Cal. 6, 9 [171 P. 1066]; Horton v. Winbigler, 175 Cal. 149, 156 [165 P. 423]; Karr v. Powell, 66 Cal.App.2d 28, 33 [151 P.2d 576] ; see Code Civ. Proc., § 1870; 1 Jones Commentaries on Evidence, §§ 170 et seq.; 10 Cal.Jur., Evidence, § 117; 20 Am.Jur., cEvidence, § 338; 31 C.J.S., Evidence, § 178.) Also, when knowledge of a fact has important bearing upon the issues, evidence is admissible which relates to the question of the existence or nonexistence of such knowledge and a wide range of proof is allowed. (Katz v. Bedford, 77 Cal. 319, 323 [19 P. 523, 1 L.R.A. 826] ; Central H. Imp. Co. v. Memorial Parks, 40 Cal.App.2d 591, 609 [105 P.2d 596]; see Code Civ. Proc., § 1870; 10 Cal.Jur., Evidence, § 118; 20 Am.Jur., Evidence, § 336; 31 C.J.S., Evidence, § 178.)

It was said in Porter v. Hofman, supra, page 447, and Parsons v. Fuller, supra, page 468 (quoting from Norton v. Puter, 138 Cal.App. 253 [32 P.2d 172]) that wilful misconduct “necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. ...” And in Meek v. Fowler, supra, page 425, the following language appears: “ ‘While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence and that this misconduct must be wilful. While the word “wilful” implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful 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 neglience. . . .’ ”

In Van Fleet v. Hyler, supra, page 729, when considering the extent of the knowledge of a driver necessary to charge him with wilful misconduct, the court said: “On the question of intent, defendant contends, quoting from Walker v. Bacon, (1933) 132 Cal.App. 625, 627 [23 P.2d 520], that ‘Wilful misconduct refers to intentional acts, that is, acts designed to bring about the result involved in the suit, ’ and argues further that because his own family was in the car he could not have had such an intent and was therefore not guilty of wilful misconduct. While the presence of a driver’s family or friends in the car with him is a fact to be considered in determining the state of mind, it is by no means conclusive on the subject. In many of the cases where drivers have been held guilty of wilful misconduct, family or friends, or both, have been among their guests. The statement quoted by defendant from Walker v. Bacon, supra, appears in the opinion of only one judge, not concurred in by the other two, who joined in the decision for other reasons, and is not a correct statement of the law. On the contrary, it is implicit in the authoritative definitions of ‘wilful misconduct,’ and is also now settled by positive holdings that an intent to injure anyone is not a necessary ingredient of wilful misconduct. ...” The same rule was stated in Hastings v. Serleto, 61 Cal.App.2d 672, 690 [143 P.2d 956], where the court held that “Undoubtedly it is proper to interrogate one accused of wilful misconduct relative to his mental attitude and knowledge of the probable consequences of his act, but such inquiry must be confined to his state of mind prior to or contemporaneously with the accident and not subsequent thereto.”

Applying these principles to the present case, the evidence objected to was admissible. Although “an intent to injure anyone is not a necessary ingredient of wilful misconduct,” “wilful misconduct involves a more positive intent actually to harm another” than gross negligence and could be established by proving such an intent. The questions were relevant to the issue of intent and knowledge, and were admissible to prove Davison’s state of mind contemporaneously with the accident.

Because the closing arguments of counsel were not reported, the appellant relies upon the affidavits filed in connection with the motion for a new trial to support his claim of misconduct. He declares that prejudice resulted when, over objection, he was referred to as being the “so-called” friend of Davison. Other remarks of similar import are also relied upon as justifying relief.

It has been said that “As the effect of misconduct can ordinarily be removed by an instruction to the jury to disregard it, it is generally essential, in order that such act be reviewed on appeal, that it shall first be called to the attention of the trial court at the time, to give the court an opportunity to so act in the premises, if possible, as to correct the error and avoid a mistrial. Where the action of the court is not thus invoked, the alleged misconduct will not be considered on appeal, if an admonition to the jury would have removed the effect. It is only the most extreme case where an instruction to the jury, if given, would not remove the effect of improper remarks.” (Aydlott v. Key System Transit Co., 104 Cal.App. 621, 628 [286 P. 456].) The record in the present case shows no assignment of misconduct and the trial court was not asked to instruct the jury to disregard the challenged remarks. The point may not, therefore, be considered upon appeal. Furthermore, these matters were presented to the trial court in support of the motion for a new trial. The motion was denied. A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. (Lafargue v. United Railroads, 183 Cal. 720, 724 [192 P. 538]; Hulburd v. Worthington, 57 Cal.App.2d 477, 479 [134 P.2d 832]; Aydlott v. Key System Transit Co., supra, p. 628.) The showing made by the appellant falls far short of meeting that requirement.

The judgment is affirmed.

Shenk, J., and Spence, J., concurred.

Schauer, J.—I concur in the judgment.