Lynch v. Birdwell

• Citation: 285 P.2d 919,44 Cal.2d 839
• Court: United States State Supreme Court (California)
• Decision Date: 05 July 1955
• Parties: John M. LYNCH, Jr., a minor, by his guardlan ad litem, John M. Lynch, Sr., and John M. Lynch, Sr., individually, Plaintiffs and Respondents, v. Jack Wayne BIRDWELL, C. W. Birdwell, and Geraldine Birdwell, Defendants and Appellants. S. F. 19252

Page 919

285 P.2d 919

44 Cal.2d 839

John M. LYNCH, Jr., a minor, by his guardlan ad litem, John M. Lynch, Sr., and John M. Lynch, Sr., individually, Plaintiffs and Respondents, v. Jack Wayne BIRDWELL, C. W. Birdwell, and Geraldine Birdwell, Defendants and Appellants.

S. F. 19252.

Supreme Court of California

July 5, 1955.

Weinmann, Rode, Burnhill & Moffitt, Oakland, and Cyril Viadro, San Francisco, for appellants.

Evans, O'Gara & McGuire and E. James McGuire, San Francisco, for respondents.

SCHAUER, Justice.

In this action to recover for personal injuries resulting from an automobile accident, defendants appeal from an adverse judgment entered upon a jury verdict. We have concluded that defendants suffered no prejudice from various asserted errors upon which they rely, and that the judgment should be affirmed.

The minor plaintiff, John M. Lynch, Jr., was injured when an automobile in which he was riding as a guest and which was being driven by the minor defendant, Jack Wayne Birdwell, plunged off the highway while descending Mount Diablo. The action is based on alleged wilful misconduct of the minor defendant (Veh.Code, § 403), and was brought to recover both general damages of the minor plaintiff and special damages of his father, consisting of the costs of treatment of his injured son. Recovery is also sought against the parents of the minor defendant, who had signed and verified his application for a driver's license. (Veh.Code, § 352.)

There is evidence, although conflicting, sufficient to establish that the car went off the road because defendant driver with wanton disregard for the probable consequences of his conduct persisted after warnings in driving too fast down and around the sharp curves of the mountain road; that he entered the curve where the car finally left the road at 40 or 45 miles an hour; that nearer the top of Mount Diablo he had driven as fast as 58 or 60 miles an hour; that he was warned on the way down and before the accident occurred that he was going too fast, but instead of slowing down he laughed and speeded up.

Defendants first contend that since the action is based on a charge of wilful misconduct, the court erred to their prejudice in giving a lengthy jury instruction defining negligence, ¹ 'without making it clear that negligence was not an issue in the case.' Following the instruction of which defendants complain, the court defined proximate cause to the jury, and then proceeded: 'In a case as here presented, there is no legal presumption of wilful misconduct on the part of the defendant * * *. (T)he mere happening of an accident, or the filing of a complaint and answer, or the fact that injuries have been sustained, raises no presumption of wilful misconduct * * *.' The nature of direct and indirect evidence, of presumptions and inferences, and of expert testimony, was next explained. It was then stated that the minor plaintiff was a guest in the automobile and that 'the host is not legally obligated to his guest to exercise ordinary care in the operation of the vehicle. The driver's only legal obligation to the guest is to refrain from being intoxicated and from wilful misconduct.

'No issue of intoxication being involved in this case, you may award damages to plaintiffs only in the event that you should find that said plaintiffs have suffered injury, of which some wilful misconduct on the part of the defendant * * * was a proximate cause.

'The words '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 that 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.

'You will note from the foregoing that although wilful misconduct is a form of negligence (a patently erroneous concept hereinafter discussed), 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, and 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. (Paragraph No. 42 of instructions.)

'In determining the question as to whether the defendant, Jack Wayne Birdwell, conducted himself with knowledge that serious injury to the plaintiff, John M. Lynch, Jr., would result from said defendant's conduct, proof of such knowledge does not have to be by direct evidence. You have a right to infer that the defendant, Jack Wayne Birdwell, had such knowledge if such an inference may reasonably be drawn from facts in evidence and if your judgment so directs.

'It follows, therefore, that if you should find that defendant was negligent, and if you should find that he intentionally did something that was wrongful and which was a proximate cause of injury to plaintiff, still a case of wilful misconduct is not established unless you further find that defendant's conduct was characterized by the element of wantonness as heretofore described. But if it was, then defendant is liable. (Paragraph No. 44 of instructions.)

'Said defendant Jack Birdwell's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that his conduct not only creates an unreasonable risk of bodily harm to the other, but also involves a high degree of probability that substantial harm will result to the other person.

'In determining whether the circumstances in this case are sufficient to disclose implied knowledge on the part of the defendant, Jack Wayne Birdwell, as to the probability of injury resulting to the minor plaintiff, John M. Lynch, Jr., by reason of the conduct of said defendant, an external standard is applied. That is to say, it is not necessary that the defendant, Jack Wayne Birdwell, himself have recognized his conduct as being extremely dangerous. It is sufficient that he knew or had reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.'

Although the record shows that defendants themselves proposed several refused instructions comparing negligence and wilful misconduct, there is no indication in the record as to whether the various instructions which were given were proposed by plaintiffs or by defendants or were given on the court's own motion. The parties did stipulate, when this case was before the District Court of Appeal, that the instruction set forth hereinabove in footnote No. 1 was given on the court's own motion and that instructions on the subject of speed, hereinafter discussed, were proposed by plaintiffs. But showing the source of only a portion of the instructions given or requested is obviously insufficient to meet the burden assumed by an appellant; i. e., the burden of establishing error prejudicial to him. Error, it is elementary, will not be presumed in favor of reversing a judgment (Brokaw v. Black-Foxe Military Institute (1951), 37 Cal.2d 274, 280, 231 P.2d 816; Philbrook v. Randall (1924), 195 Cal. 95, 104, 231 P. 739; Bacon v. Grosse (1913), 165 Cal. 481, 490, 132 P.2d 1027; Cutting Fruit Packing Co. v. Canty (1904), 141 Cal. 692, 695-696, 75 P. 564; 4 Cal.Jur.2d 426, § 559, and cases there cited) and invited error cannot be complained of by the appellant (Nevis v. Pacific Gas & Electric Co. (1954), 43 Cal.2d 626, 630, 275 P.2d 761; Jentick v. Pacific Gas & Elec. Co. (1941), 18 Cal.2d 117, 114 P.2d 343; see also 4 Cal.Jur.2d 420-424 and 3 Cal.Jur.2d 821, and cases there cited). As declared in Vaughn v. Jonas (1948), 31 Cal.2d 586, 596, 191 P.2d 432, in making up the record on appeal 'Each instruction should be identified by a number and should indicate by whom it was requested or that it was given by the court of its own motion; on each requested instruction the trial judge should endorse the fact as to whether it was given or refused or given as modified, with the modification, if any, clearly indicated.' (See also 4 Cal.Jur.2d 101-102.)

As in the Vaughn case, the reporter's transcript here sets forth in the form of a single instruction, covering approximately twenty-five pages, a congeries of propositions of law which made up the entire charge given to the jury, and there is no indication as to who requested statement of any of the various legal principles contained therein. Thereafter there is set forth a group of 'Instructions Requested by Defendants but Refused by the Court,' each of which bears a number; in no other respect is any portion of the instructions appearing in the record designated by an identifying number or source. Since the record fails to show who requested the instructions which were given it must be presumed by a reviewing court (except as to the matters covered by stipulation as hereinabove noted) that the instructions which for convenience we have designated as paragraphs 42 and 44 (and which compare negligence with wilful misconduct) were given at appellants' (defendants') own request. (See Deevy v. Tassi (1942), 21 Cal.2d 109, 124, 130 P.2d 389; 4 Cal.Jur.2d 441-442, § 569, and cases there cited.) The most egregious errors in the instructions appear in those two paragraphs, in which the concepts of negligence on the one hand and...