Hoffman v. Slocum

• Decision Date: 07 August 1963
• Citation: Hoffman v. Slocum, 32 Cal.Rptr. 635, 219 Cal.App.2d 100 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: Jack C. HOFFMAN, Plaintiff and Respondent, v. Allce E. SLOCUM, as Executrix of the Last Will and Testament of Philip G. Slocum, Deceased, Defendant and Appellant. Civ. 26328.

Page 635

32 Cal.Rptr. 635

219 Cal.App.2d 100

Jack C. HOFFMAN, Plaintiff and Respondent, v. Allce E. SLOCUM, as Executrix of the Last Will and Testament of Philip G. Slocum, Deceased, Defendant and Appellant.

Civ. 26328.

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

Aug. 7, 1963.

Rehearing Denied Aug. 30, 1963.

Hearing Denied Oct. 1, 1963.

Gilbert, Thompson & Kelly and Jean Wunderlich, Los Angeles, for defendant and appellant.

Clifton A. Hix and Elizabeth Hix, San Pedro, for plaintiff and respondent.

FILES, Justice.

This appeal is taken by the defendant, executrix of the estate of Philip Slocum, from a judgment entered in favor of plaintiff in a personal injury action following a nonjury trial. The judgment is based on the trial court's finding that plaintiff, the guest in an automobile driven by decedent, sustained serious injuries as the result of decedent's wilful misconduct in the operation of his vehicle. Slocum was fatally injured in the accident. Defendant contends that the evidence is insufficient to support the finding of wilful misconduct, and that the trial judge erred in admitting the opinion of a police officer regarding the speed of the Slocum car.

The accident occurred June 12, 1959, at about 10 p. m. on Henry Ford Avenue, sixtenths of a mile south of its intersection with Anaheim Street in the City of Los Angeles. Henry Ford is a 4-lane city street with a 9- to 10-inch concrete curbing. Northbound and southbound lanes are separated by a center double stripe. There are access roads onto Henry Ford from the adjacent oil fields. It is straight and level for the first 2,500 feet south of Anaheim Street. In the next 75 feet the roadway rises about 5 feet and over a metal grating bridge 125 feet long. A southbound driver cannot see traffic beyond it until his vehicle is on the bridge. South of the bridge the road again descends over the next 75 feet to its prior level and continues southward. There is a considerable dip both approaching and leaving the bridge.

The evidence of the cause of the accident is limited to the testimony of one passing motorist and the physical conditions which were observed after the accident. The driver did not live to testify, and the trial court struck the testimony of the plaintiff under Code of Civil Procedure, section 1880, subdivision 3. The record supports the inferences drawn by the trial judge as set forth in his written opinion, as follows:

'Disregarding and eliminating all of the plaintiff's testimony as to matters occurring prior to the death of the deceased, pursuant to Section 1880, Subdivision 3, Code of Civil Procedure, the evidence shows that the deceased operated his sports car over the raised fixed bridge at an extremely high rate of speed in the left or center lane of southbound traffic; that he approached another southbound vehicle from the rear in the same lane; that a northbound vehicle was approaching which would prevent him from passing the southbound vehicle to the left of the double center line; that deceased suddenly applied his brakes in the center or left lane next to the double line at a point approximately 500 feet south of the fixed bridge; he turned his car to the right toward the curb lane and laid down 148 feet of four-wheel locked side skid marks to the edge of the roadway, jumped the curbing, struck a 16 to 18-inch power pole breaking it off just above its base and moving it over two or three feet from its base where it stood suspended by the high tension wires. The car tore down approximately 60 feet of chain link fence, swung around from a southwesterly direction to a southeasterly direction where it came to rest approximately 70 feet from the point where the car jumped the curb and approximately 30 or 40 feet from the broken power pole.'

The only eyewitness, a northbound motorist, testified: 'Well, I saw two sets of headlights coming toward me. It was 10:00 o'clock at night. There wasn't anything else to see, so a person looks at lights, and nothing particularly attracted me to them until suddenly the rear pair of headlights turned sharply right and I just had time to think, 'There is no road there,' when it crashed, and by that time I was almost opposite the accident and there was a big cloud of dust from the car rolling. As soon as I cleared the dust I made a U-turn, stopped and put out flares. I saw both of the injured men laying [sic] on the side of the road. The car was within the fence and I went to the car to see if anyone else was in there.' At the time of the accident the weather was clear and the pavement dry. The posted speed limit on Henry Ford Avenue was 40 miles per hour.

Defendant contends that the evidence is insufficient to support the judgment in that it demonstrates at most that decedent was driving at a high rate of speed, and that this fact alone would not sustain a finding of wilful misconduct within the meaning of Vehicle Code, section 17158.

A driver of an automobile is liable for injuries to his guest where he has intentionally operated his vehicle with a wanton and reckless disregard of the possible consequences. (Goncalves v. Los Banos Mining Co., 58 Cal.2d 916, 918, 26 Cal.Rptr. 769, 376 P.2d 833; Howard v. Howard, 132 Cal.App. 124, 128, 22 P.2d 279.) Since the driver will rarely, if ever, admit to having driven with the frame of mind which would render his behavior culpable under the guest statute, the intentional, wanton character of his behavior may be implied from the surrounding circumstances. (Fuller v. Chambers, 142 Cal.App.2d 377, 380, 298 P.2d 125.)

It is futile to assert that 'speed alone' is not sufficient evidence of the driver's state of mind. In Fisher v. Zimmerman, 23 Cal.App.2d 696, p. 701, 73 P.2d 1243, p. 1246, the court said:

'It is generally held that mere speed, of itself, does not constitute willful misconduct. This may not always be true. There may be a point at which the speed becomes so excessive, the danger of injury to the passenger so probable, that such extreme speed alone might be held to be willful misconduct. Speed coupled with other circumstances has been held to constitute willful misconduct.'

As Judge Bishop observed in People v. Nowell, 45 Cal.App.2d Supp. 811, at p. 813, 114 P.2d 81,...