Pelletti v. Membrila

• Decision Date: 24 May 1965
• Citation: 44 Cal.Rptr. 588,234 Cal.App.2d 606
• Court: California Court of Appeals Court of Appeals
• Parties: Mrs. John Virgil PELLETTI, etc., et al., Plaintiffs and Appellants, v. Anthony Munoz MEMBRILA, aka Tony Munoz Membrila, Defendant and Respondent. Civ. 28384.

Page 588

44 Cal.Rptr. 588

234 Cal.App.2d 606

Mrs. John Virgil PELLETTI, etc., et al., Plaintiffs and Appellants, v. Anthony Munoz MEMBRILA, aka Tony Munoz Membrila, Defendant and Respondent.

Civ. 28384.

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

May 24, 1965.

Rehearing Denied June 16, 1965.

As Modified June 18, 1965.

Hearing Denied July 21, 1965.

Kenny, Morris & Ibanez, Los Angeles, and Paul Major, Van Nuys, by John R. Crowe, Los Angeles, for appellants.

Early, Maslach, Foran & Williams, Kenneth H. Wechsler, Los Angeles, for respondent.

FLEMING, Justice.

Situation: Defendant, after 12 drinks at four different bars, at 1:30 in the morning, driving his automobile 35 miles an hour on Santa Monica Boulevard in the company of a female companion he had just met, struck and killed a pedestrian in the middle of the block of a well-lighted street with crosswalks. Defendant did not remain at the scene of the accident, but after leaving 116 feet of skid marks continued on his way and only returned 20 minutes later at the direction of a witness to the accident who had followed him.

Question: In a suit for wrongful death should the issue of wilful misconduct of defendant in the operation of his motor vehicle have been submitted to the jury in order to permit plaintiffs to counter the defense of contributory negligence?

Answer: Yes. There was sufficient evidence of wilful misconduct by the driver in the operation of his motor vehicle to submit that issue to the jury.

The significance of the distinction between wilful misconduct and negligence as it relates to this case lies in the defense of contributory negligence. Proof of wilful misconduct allows plaintiff to recover his damages even though he himself has been contributorily negligent. (Restatement, Torts, § 482.) On the other hand, proof of no greater fault than negligent conduct is an insufficient basis for recovery of damages if plaintiff himself has been negligent. (Restatement, Torts, § 467.) Since contributory negligence was established in this case, the nonsuit on the charge of wilful misconduct resulted in a defense verdict. Plaintiffs argue there was sufficient evidence of wilful misconduct to go to the jury. Defendant argues that his conduct was no worse than negligent, and therefore the nonsuit on wilful misconduct was proper. Thus, the principal issue on appeal involves an analysis of the tort of wilful misconduct and the elements which have served to distinguish it from negligent conduct. ¹

Our starting point is the basic dichotomy in the law of torts between intended torts and accidental torts. Contributory negligence is no defense to an intended tort. (Harper and James on Torts, Vol. 2, p. 1211.) Wilful misconduct was initially classified as conduct which was intended, as the language used to describe it suggests. The original idea of wilful misconduct covered conduct which was intended, deliberate, conscious, planned, calculated. (Meek v. Fowler, 3 Cal.2d 420, 425-426, 45 P.2d 194.) Wilful misconduct was considered to be conduct which reflected a specific state of mind, either willing to inflict injury or grossly indifferent to the consequences of extremely dangerous conduct, such as firing a rifle in a crowded city park, drag-strip racing on a freeway, or throwing heavy furniture from a hotel window onto a crowded street. Each of these hypothetical acts reflects a callous state of mind willing to cause injury to others.

But in applying a rule which imposes liability for conduct because of specific evil intent, when we leave conduct which is demonstrably antisocial and move into more debatable ground, we face the problem of proof of the actor's bad state of mind. If by word or gesture the actor has indicated that he intends the consequences of his conduct, this determination becomes relatively easy. However, such proof is rarely available. (Prosser, Law of Torts (3rd ed.), p. 189.) Do we then abandon attempts to prove wilful misconduct because the actor has not articulated his evil intent? Obviously not, any more than we do in the criminal law. There, as here, we have no difficulty in reaching the actor's state of mind through the medium of his actual conduct. (Penal Code, § 21; Code Civ.Proc. §§ 1962(1), 1963(2).) Even when we hold that it is a requirement of the tort of wilful misconduct that the actor's bad state of mind be determined in each case, thereby insisting on a subjective standard of proof, we have no difficulty in concluding that aggravated misconduct usually reflects a bad state of mind, and we are willing to infer the presence of the latter from the existence of the former.

The next development in tort liability for wilful misconduct usually arises out of an evaluation of the effect of such conduct on the victim. When aggravated misconduct is looked at from the point of view of the injured party we see it makes little difference to the victim what the state of mind of the actor was and whether the consequences of his misconduct resulted from a bad state of mind or from blundering incompetence. In either case the victim has suffered the same loss. Accordingly, the law tends to take a further step and declare that in cases of aggravated misconduct the bad state of mind of the actor is presumed. The actor's conduct is formally characterized as malicious, wanton, or wilful, and it then becomes largely immaterial that the actor's motives in fact may have been good. Thus with the help of a legal fiction, that is to say the assumption that aggravated misconduct was intended, the law arrives at an objective standard of conduct under which it is presumed in certain types of misconduct that the actor's intentions were bad, i.e. wilful. (Van Fleet v. Heyler, 51 Cal.App.2d 719, 727-730, 125 P.2d 586.)

In the final stage of this transformation we tend to dispense with the legal fiction and directly recognize the change in the law which minimizes the actor's evil intent as an element in the tort of wilful misconduct--which may now be proved by aggravated misconduct alone. If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it wilful misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts. (Levizon v. Harrison, 198 Cal.App.2d 274, 279-281, 18 Cal.Rptr. 284.) The rule is expressed in Restatement of Torts, § 500(c): 'In order that the actor's conduct may be reckless, it is not necessary that he himself recognize it as being extremely dangerous. His inability to realize the danger may be due to his own reckless temperament or to the abnormally favorable results of previous conduct of the same sort. It is enough that he knows or has reason to know of circumstances which would bring home to the realization of the ordinary, reasonable man the highly dangerous character of his conduct.' The rule has been summarized by Holmes: 'The standard applied is external, and the words malice, intent and negligence, as used in this connection, refer to an external standard. If the manifest probability of harm is very great, and the harm follows, we say that it is done maliciously or intentionally; if not so great, but still considerable, we say that the harm is done negligently; if there is no apparent danger, we call it mischance.' (Selected Essays on the Law of Torts, p. 162.)

To sum up, when conduct falls sufficiently below the acceptable norm to become grossly...