Jones v. Ayers

• Decision Date: 05 February 1963
• Citation: 212 Cal.App.2d 646,28 Cal.Rptr. 223
• Court: California Court of Appeals Court of Appeals
• Parties: Constance Adele JONES, by her guardian ad litem, Lawrence M. Jones, Plaintiff and Appellant, v. Thomas Eugene AYERS, Joseph Ayers, Rudolph Bowers and M. C. Bowers, Defendants and Respondents. Civ. 26149.

Page 223

28 Cal.Rptr. 223

212 Cal.App.2d 646

Constance Adele JONES, by her guardian ad litem, Lawrence M. Jones, Plaintiff and Appellant, v. Thomas Eugene AYERS, Joseph Ayers, Rudolph Bowers and M. C. Bowers, Defendants and Respondents.

Civ. 26149.

District Court of Appeal, Second District, Division 2, California.

Feb. 5, 1963.

Earl A. Barnes, Long Beach, for appellant.

Parker, Stanbury, McGee, Peckham & Garrett; J. H. Peckham, Los Angeles, for respondents.

ASHBURN, Justice.

Constance Adele Jones, a minor, sues through her guardian ad litem to recover damages for personal injuries received by her while riding as a guest in an automobile driven by defendant Thomas Eugene Ayers on the evening of January 30, 1960. The car belonged to M. C. Bowers, who had given his son Rudolph Bowers express or implied permission to drive it on the occasion in question, and Rudolph in turn had given permission to his friend, Thomas Eugene Ayers, to drive it and, as stated, Ayers was so engaged at the time of the accident. Both Thomas Eugene Ayers (Tom) and Rudolph Bowers (Rudy) were minors, aged 15 and 17 years respectively, and Ayers had only an instruction permit (Veh.Code § 12509). His father, Joseph Ayers, had signed and verified his application for a driver's license and thus had rendered himself liable for damages for negligence or wilful misconduct of his son when operating a motor vehicle (Veh.Code § 17707). Plaintiff sued both of the Ayers and both of the Bowers, as well as Donald Alan Story, who was driving the other car involved in the accident.

Plaintiff's amended complaint contained five causes of action and prayed for judgment against all defendants on each count. The court directed a verdict in favor of each defendant other than Story and hence this appeal taken by plaintiff. The jury exonerated Story of all charges.

The first count of the amended complaint charged mere negligence of Tom, the driver. It was stipulated that plaintiff was his guest in the car. Of course, this count stated no cause of action against any defendant, for § 17158, Vehicle Code, says: 'No person who as a guest accepts a ride in any vehicle upon a highway without giving compensation for such ride, nor any other person, has any right of action for civil damages against the driver of the vehicle or against any other person legally liable for the conduct of the driver on account of personal injury to or the death of the guest during the ride, unless the plaintiff in any such action establishes that the injury or death proximately resulted from the intoxication or wilful misconduct of the driver.' (Emphasis added.) See, Weber v. Pinyan, 9 Cal.2d 226, 238, 70 P.2d 183, 112 A.L.R. 407; Bowman v. Collins, 181 Cal.App.2d 807, 814, 5 Cal.Rptr. 776. It is said in Benton v. Sloss, 38 Cal.2d 399, 403, 240 P.2d 575, 577: 'Section 403[17158] bars actions against the 'driver' of a vehicle or against 'any other person legally liable for the conduct of such driver'. The phrase 'person legally liable' for the driver's conduct is clearly intended to cover cases in which the owner is vicariously liable for the driver's conduct because of the relationship of the parties, as principal-agent, or because of imputed negligence under section 402[17150]. Stober v. Halsey, supra; Stephen v. Spaulding, 32 Cal.App.2d 326, 89 P.2d 683. Section 403 does not limit the common-law liability of the owner of a vehicle for his own negligence as owner.' There was no error in instructing a verdict in favor of all defendants so far as this count is concerned.

The second cause of action alleged wilful misconduct of Tom Ayers, the driver; there was and is no claim of intoxication. As the rule governing a directed verdict is the same as nonsuit, all evidence and all legitimate inferences favorable to appellant-plaintiff must be indulged upon an appeal from a judgment directed in favor of defendant. (Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768; Estate of Sharon, 179 Cal. 447, 459, 177 P. 283; 2 Witkin, California Procedure, § 125, pp. 1857-1858.)

Wilful misconduct is thus defined in Goncalves v. Los Banos Mining Co., 58 A.C. 938, 940, 26 Cal.Rptr. 769, 770, 376 P.2d 833, 834: '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. (Gillespie v. Rawlings, 49 Cal.2d 359, 367, 317 P.2d 601.)' It has been repeatedly held that mere failure to perform a statutory duty such as obeying a stop sign at an intersecting highway is not substantial evidence of wilful misconduct. (See, Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194; Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447; McLeod v. Dutton, 13 Cal.App.2d 545, 548-549, 57 P.2d 189; Francesconi v. Belluomini, 28 Cal.App.2d 701, 705, 83 P.2d 298; Flannery v. Koch, 103 Cal.App.2d 55, 57, 228 P.2d 580; Stewart v. Kelly, 68 Cal.App.2d 122, 126, 155 P.2d 850.) 2 Witkin, Summary of California Law (7th Ed.), § 362, page 1563: 'Driving at an excessive speed, taking chances at an intersection, inattention to driving, or similar acts, may constitute gross neglgience, but do not amount to wilful misconduct. (Meek v. Fowler (1935) 3 C.2d 420, 45 P.2d 194; Howard v. Howard (1933), 132 C.A. 124, 22 P.2d 279; Forsman v. Colton (1933) 136 C.A. 97, 28 P.2d 429; Ceikin v. Goldman (1935) 5 C.A.2d 162, 42 P.2d 719; Walker v. Bacon (1933) 132 C.A. 625, 23 P.2d 520; Shipp v. Lough (1940) 41 C.A.2d 820, 107 P.2d 661 * * *.' But it may be such when coupled with other circumstances. 'Although, as stated by appellant, excessive speed alone is not necessarily wilful misconduct, nevertheless, as pointed out in respondents' brief, 'speed is an important element to be considered since it, coupled with other circumstances, may constitute wilful misconduct'. In several reported cases, a speed of 60 miles per hour has been held to constitute wilful misconduct when conjoined with such facts as a damp highway, a misty night requiring windshield wipers, etc. Hallman v. Richards, 123 Cal.App.2d 274, 266 P.2d 812 is an example of such holdings, involving a factual situation not dissimilar from that here presented.' (Harlow v. Van Dusen, 137 Cal.App.2d 547, 550, 290 P.2d 911, 913.)

In considering attending circumstances it is important to disregard false quantities in the problem. For instance, Ayers was driving under an instruction permit which required, as does the statute (Veh.Code § 12509), that when driving the holder be 'accompanied by, and under the immediate supervision of, a licensed driver 18 years of age or over.' Rudy Bowers had a driver's license but he was not yet 18 years of age, nor had anyone else in the car reached that age. It does not appear, however, that Ayers knew that Rudy was not 18 or over. He thought he was 18 and apparently heard him say 'that it was now legal for Tom to drive when Rudy himself was in the car.' This left Ayers in the same position as if he were driving without a license. But that fact is not evidence of incompetence to drive or of negligence in so doing. (Lemuth v. Long Beach Unified Sch. Dist., 53 Cal.2d 544, 554, 2 Cal.Rptr. 279, 348 P.2d 887; Strandt v. Cannon, 29 Cal.App.2d 509, 518, 85 P.2d 160; Shmatovich v. New Sonoma Creamery, 187 Cal.App.2d 342, 344, 9 Cal.Rptr. 630.) On the other hand, it does enter into the question of negligent entrustment, a problem presented by the third cause of action and discussed infra. So, in determining whether there is substantial evidence in this record of wilful misconduct of Ayers, we must ignore the absence of a license and center upon the things done or omitted by him.

Viewing the evidence in the best light for appellant the following facts were established at the trial. This was a Saturday evening 'double date' in which Tom had with him his friend, the plaintiff, and Rudolph's guest was Pamela LaPorte--all of them under 18 years. Plaintiff, who was 15 years old, was a guest in the front seat of a 1953 Ford sedan driven by Tom Ayers, who was also 15 years old. The 1953 Ford was owned by M. C. Bowers, but his son Rudolph, who was 17 years old, was the principal user of the car. Rudolph was riding in the back seat with Pamela at the time of the accident. He had entrusted the driving of the car to Tom a few minutes before the accident occurred. The other car involved in the accident was a 1956 Chevrolet sedan driven by Donald Story, who was accompanied by his 'date.' The accident occurred when Tom, who was driving the Ford eastbound on Pine Avenue, a dark, two-lane country road, went through a boulevard stop sign without stoppping, at Euclid Avenue, a four-lane divided highway, and collided with the Chevrolet automobile driven by Donald Story, which was southbound on Euclid Avenue.

Tom and Rudolph were classmates at High School. Before the day of the accident Rudolph had seen Tom drive a car only on two occasions. On both of these occasions Rudolph was at school when he saw Tom drive up accompanied by one of his parents. Rudolph knew that Tom did not have a regular vehicle operator's license, but instead had an Instruction Permit. Rudolph was also aware that Tom's Instruction Permit authorized him to operate a motor vehicle only when accompanied by and under the immediate supervision of a driver 18 years of age or over, who himself was licensed to operate the vehicle. Tom's father, Joseph Ayers, had assisted Tom in obtaining his Instruction Permit by signing and verifying the application for the permit just 14 days before the accident occurred. During that period of 14 days, he had driven his father's 1957 Ford pickup truck, under the supervision of his father to and from his father's business five days a week or a distance of approximately 100 miles. He had driven his father's Mercury automobile, under the supervision of one of his parents, on four occasions to school.

Before arriving at Pamela LaPorte's house on the...