Davis v. Nelson

• Decision Date: 10 October 1963
• Court: California Court of Appeals Court of Appeals
• Parties: Warren Elmo DAVIS, by his guardian ad Litem Angelina Davis, Plaintiff and appellant, v. Everett NELSON, as Administrator of the Estate of Owen Everett Nelson, deceased, Everett Nelson and Jane Doe Nelson, parents and guardians of Owen Everett Nelson, deceased, Defendants and Respondents. Civ. 20456.

Page 201

34 Cal.Rptr. 201

221 Cal.App.2d 62

Warren Elmo DAVIS, by his guardian ad Litem Angelina Davis, Plaintiff and appellant, v. Everett NELSON, as Administrator of the Estate of Owen Everett Nelson, deceased, Everett Nelson and Jane Doe Nelson, parents and guardians of Owen Everett Nelson, deceased, Defendants and Respondents.

Civ. 20456.

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

Oct. 10, 1963.

As Corrected on Denial of Rehearing Nov. 5, 1963.

Hearing Denied Dec. 4, 1963.

Di Leonardo, Blake, Kelly, Aguilar & Leal, by Stanley F. Leal, Sunnyvale, for appellant.

Hoge, Fenton, Jones & Appeal, by James B. Eggert, San Jose, for respondents.

SALSMAN, Justice.

This is an appeal by the plaintiff from a judgment based upon a jury's verdict denying damages for personal injuries.

Appellant sustained injuries while riding in a car driver by Owen Nelson, who was killed in the accident. Appellant named as defendants the estate of the deceased driver and the driver's parents. In his complaint appellant alleged he was a guest in the car, and that his injuries were sustained because of the wilful misconduct and intoxication of the driver. Another cause of action based on appellant's alleged status as a passenger was also stated. Appellant's claims of prejudicial error before us relate solely to instructions given to the jury by the trial judge. In order to understand the basis for the court's instructions it is necessary to relate some of the evidence.

Appellant was a member of the United States Air Force, stationed at Madera. His home was in Campbell. He contacted his fiancee, Margaret Paul, at her home in Los Gatos and asked her to arrange transportation for him from Madera to Campbell. Margaret Paul asked Owen Nelson to drive her to Madera, and he agreed. During the evening of September 6, 1958 Margaret Paul, Owen Nelson and Henry Paul, the 14 year old brother of Margaret Paul, left Los Gatos for Madera. They arrived at Madera, picked up appellant and began their return journey. Henry Paul, the only witness who could testify to the facts surrounding the trip, stated that Owen Nelson drove very fast on the trip to Madera. Margaret Paul asked that appellant drive on the return trip but Owen Nelson refused. Before leaving Madera the group jointly purchased two 'six packs' of beer and drank together as they drove along. Owen Nelson, Margaret Paul and appellant each drank two cans of beer. Henry Paul was seated in the front seat with the driver. Appellant and Margaret Paul were in the back seat. After drinking two cans of beer each, appellant and Margaret Paul went to sleep. Owen Nelson continued to drink beer and drive at high speed, at times in excess of 70 miles per hour. A stop was made at Los Banos. From Los Banos the party proceeded toward Pacheco Pass. Appellant and Margaret Paul continued to sleep in the back seat. There was no letup in the high rate of speed at which Owen Nelson drove the car. When the car reached the top of Pacheco Pass the driver stopped and got out, but appellant and Margaret Paul continued to sleep. There is a considerable grade on the westerly side of Pacheco Pass, with many curves in the road. In descending the pass Owen Nelson continued to drive very fast. He told Henry Paul there was a certain club in Campbell to which he might be admitted if he took all the curves on the westerly side of Pacheco Pass at 70 miles per hour. His speed fully qualified him for membership in the club until the car skidded off the road and narrowly missed a telephone pole. The car came to a complete stop. All parties including appellant, protested against. Owen Nelson's driving. Appellant told Nelson 'in a high pitched voice' to slow down. This incident, and appellant's protest, occurred a mile and one-tenth from the intersection of Pacheco Pass Road and Frazer Lake Road. Appellant and Margaret Paul according to the testimony, again went to sleep. In the mile and one-tenth distance from the place where the car first left the highway to the intersection of Frazer Lake Road the car twice reached a speed of 80 miles per hour. There is a curve in the road at the intersection mentioned, and there the car again skidded off the road, traveled 207 feet and struck a tree. Owen Nelson and Margaret Paul were killed. Appellant and Henry Paul were severely injured. Tests revealed the driver's blood alcohol level was .09 percent. Expert testimony was that, depending upon individual tolerance to alcohol, one's driving ability becomes impaired when the blood alcohol level reaches .05 percent to .1 percent and that all persons are appreciable impaired in their ability to operate a motor vehicle when their blood alcohol level reaches .1 percent.

Appellant's objections on this appeal relate first to the court's instructions on contributory negligence as a defense to appellant's charge of wilful misconduct, and secondly to the court's instructions on the doctrine of assumption of risk. Respondents contend, with merit, that appellant cannot be heard to object to instructions given on either subject because appellant himself tendered instructions to the court on the very principles to which he now objects. (See Pobor v. Western Pac. R. R. Co., 55 Cal.2d 314, 11 Cal.Rptr. 106, 359 P.2d 474; Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 65 A.L.R.2d 1.) The record fully supports the respondents in this regard, and we might properly dispose of this entire appeal on the familiar principle of invited error but we have chosen not to rest the decision in the case solely on such ground.

On the subject of wilful misconduct and intoxication the trial judge instructed the jury in the language of standard BAJI instructions 209-C and 209-N. The last sentence of 209-C reads: 'If plaintiff should prevail in your findings as to either the issue of intoxication or that of wilful misconduct as a proximate cause of injury suffered by him, he will be entitled to recover damages unless he is barred from relief by contributory negligence, if any, or by an assumption of the risk, if such there was, under instructions to be given by the Court.' Instruction 209-N reads: 'If you should find that immediately preceding the accident involved in this case the defendant was intoxicated and that his intoxication was a proximate cause of injury to the plaintiff, the plaintiff will be entitled to your verdict for damages in compensation for the injury thus caused, provided, of course, that you should find in plaintiff's favor on the defense of contributory negligence and on the defense of assumption of risk under instructions to be given later.'

Appellant first correctly contends that these instructions inform the jury that contributory negligence is a defense to liability based upon wilful misconduct. He is not correct, however, in his contention that this is error. Wilful misconduct has been defined as the doing of an act with a positive, active and absolute disregard of the consequences. (Hawaiian Pineapple Co. v. Industrial Acc. Comm., 40 Cal.2d 656, 662, 255 P.2d 431.) As a general rule, contributory negligence on the part of an injured plaintiff is no defense to an action based upon a claim of wilful misconduct. (Seeger v. Odell, 18 Cal.2d 409, 414, 115 P.2d 977, 136 A.L.R. 1291; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 870, 118 P.2d 465; Prosser, Torts, 2d ed., pp. 289-290.) The cases which uphold the general rule, however, are not cases involving claims of a guest against the driver of an automobile in which the guest is riding at the time of the injury. (See Tognazzini v. Freeman, 18 Cal.App. 468, 123 P. 540; Esrey v. Southern Pacific Co., 103 Cal. 541, 37 P. 500; Harrington v. Los Angeles Railway Co., 140 Cal. 514, 74 P. 15, 63 L.R.A. 238; Donnelly v. Southern Pacific Co., supra; Moreno v. Los Angeles Transfer Co., 44 Cal.App. 551, 557, 186 P. 800; Richardson v. Pridmore, 97 Cal.App.2d 124, 131, 217 P.2d 113, 17 A.L.R.2d 929; Cawog v. Rothbaum, 165 Cal.App.2d 577, 331 P.2d 1063.) The statement of the court in Tognazzini v. Freeman, supra, at page 476, 18 Cal.App., at page 544 of 123 P., is typical of the comment made in the case where the general rule is applicable: '* * * the plaintiff's cause of action having been stated solely upon the willful wrongful act of the defendants, the doctrine of contributory negligence has no application to any phase of the case * * *.' Nevertheless, in cases arising out of automobile accidents, where the guest-host relationship is involved, a long line of cases has held that contributory negligence may be a defense to a charge of wilful misconduct on the part of the host, where the guest's conduct is such that it is a part of, or an inducing cause of the host's wilful misconduct. (See Schneider v. Brecht, 6 Cal.App.2d 379, 44 P.2d 662; Reposa v. Pearce, 11 Cal.App.2d 517, 54 P.2d 475; Amidon v. Hebert, 93 Cal.App.2d 225, 208 P.2d 733; Johnson v. Marquis, 93 Cal.App.2d 341, 209 P.2d 63; King v. City of Long Beach, 67 Cal.App.2d 1, 153 P.2d 445; Mountain v. Wheatley, 106 Cal.App.2d 333, 234 P.2d 1031; Bradbeer v. Scott, 193 Cal.App.2d 575, 14 Cal.Rptr. 458.) Whether the conduct of the guest is a part of or an inducing cause of the wilful misconduct of the host is a question of fact, to be decided by the jury from all of the evidence in the case. The fact that the host is guilty of wilful misconduct is not of itself determinative of liability, because the question of the guest's fault, if any, still remains, and if on the evidence the jury finds the guest's conduct a part of or an inducing cause of the host's wilful misconduct, recovery may be denied. In the case we now consider, the driver's alleged wilful misconduct...