Snider v. Whitson, 18973

• Decision Date: 29 August 1960
• Docket Number: No. 18973,18973
• Court: California Court of Appeals Court of Appeals
• Parties: Susan SNIDER and Lorena Mae Gledhill, Plaintiffs and Appellants, v. Maude WHITSON, Hansen Matteri, Dewey Balocco et al., Defendants, Maude Whitson, Defendant and Respondent.

Page 353

7 Cal.Rptr. 353

184 Cal.App.2d 211

Susan SNIDER and Lorena Mae Gledhill, Plaintiffs and Appellants, v. Maude WHITSON, Hansen Matteri, Dewey Balocco et al., Defendants, Maude Whitson, Defendant and Respondent.

No. 18973.

District Court of Appeal, First District, Division 1, California.

Aug. 29, 1960.

Vernon F. Humber, San Francisco, for appellants.

Pelton, Gunther, Durney & Gudmundson, San Francisco, for respondent.

PAULSEN, Justice pro tem.

Plaintiffs appeal from a judgment entered after a general and special demurrer to plaintiffs' first amended complaint was sustained without leave to amend.

While there are four other causes of action in the complaint dealing with defendants other than defendant Whitson, the only causes of action we are concerned with are those attempted to be alleged in counts 3 and 4. Count 3 attempts to set up a cause of action in favor of plaintiff Susan Snider based upon wilful misconduct of defendant Whitson; count 4 attempts to set up a cause of action in favor of plaintiff Lorena Mae Gledhill, Likewise based upon wilful misconduct. Typical of the allegations in each count is the following in count 3: that on the 11th day of October, 1958, plaintiff 'was a guest in a certain automobile * * * being driven, owned and controlled by the Defendant' on a public highway; 'That at said time and place the Defendant, Maude Whitson, did wilfully misconduct herself in the operation and control of her vehicle in the following respects and particulars: That the Defendant, Maude Whitson, was a person of the advanced age of 83 years; that the Defendant, Maude Whitson, well knew that her advanced age had resulted in delayed, sluggish and slow reactions to anticipated dangers in driving an automobile that the Defendant, Maude Whitson, knew she had poor and failing eyesight and was unable to properly judge distance and speeds of oncoming vehicles; that the Defendant, Maude Whitson, knew of her incapacity to safely drive an automobile without danger to the general public and those riding as passengers with her; that in spite of each and every of the above matters the Defendant continued to drive her automobile in wilful disregard of the safety of the general public and more particularly the Plaintiffs herein. That solely and proximately as a result thereof the Plaintiff, Susan Snider, sustained severe personal injuries * * *'

As guests, plaintiffs are required to plead and prove wilful misconduct on the part of defendant or they cannot recover. Vehicle Code, § 17158.

Defendant's infirmities, her knowledge thereof, and their effect upon her ability to drive, are alleged in detail, but no facts concerning an accident are stated. It cannot be determined from the complaint whether there was a collision, whether defendant drove off the road, or whether her act, whatever it was, was the result of negligence, gross negligence, or wilful misconduct, or that her physical condition was the proximate cause of whatever occurred to cause plaintiffs' injuries. Nevertheless, plaintiffs contend that under our liberal rules of pleading no other facts need be stated.

It is difficult to reconcile some of the decisions in this state dealing with the question of required statements of fact in ordinary negligence cases. In the leading case of Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 101, 114 P.2d 1, 4, it is said that 'a cause of action may be stated in which negligence is alleged in general terms, without detailing the specific manner in which the injury occurred.' Further, 'There are, of course, limits to the generality with which a plaintiff is permitted to state his cause of action, and it is ordinarily said that while negligence may be pleaded in general terms, the plaintiff must indicate the acts or omissions which are said to have been negligently performed.' Where ordinary negligence was relied upon, a statement that the defendant negligently operated an automobile was held sufficient. Latky v. Wolfe, 85 Cal.App. 332, 259 P. 470; Wiley v. Cole, 52 Cal.App. 617, 199 P. 550.

Where a plaintiff relies upon wilful misconduct there are sound reasons why he should be required to state the facts more fully than in ordinary negligence cases so that it may be determined whether they do constitute wilful misconduct rather than negligence or gross negligence. The distinction is often difficult to determine.

In Nichols v. Smith, 136 Cal.App. 272, 28 P.2d 693 (decided at a time when a guest could recover upon proof of gross negligence), it was held that allegations of negligence in general terms were insufficient to state a cause of action for gross negligence. The reasoning of that case was followed in Bartlett v. Jackson, 13 Cal.App.2d 435, 436, 56 P.2d 1298, and applied to a claim of wilful misconduct. It was there alleged that "As a result of the defendants' wilful misconduct in the operation of the aforedescribed International truck and trailer, the plaintiff was thrown with great force * * *' and injured.' The court stated: 'No facts are alleged which are deemed to have constituted willful misconduct * * *.

'In the case of Norton v. Puter, 138 Cal.App. 253, 258, 32 P. (2d) 172, 174, it is said: 'Wilful misconduct depends upon the facts of a particular case, and necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.'

'We are cited to no authority in this state which holds that a complaint which is based on willful misconduct, and which merely alleges in general language that the defendant was guilty of willful misconduct in the operation of his automobile, without reciting any specific facts upon upon which that charge is based is sufficient as against a special demurrer. In the case of Helme v. Western Milling Company, 43 Cal.App. 416, 185 P. 510, it is said: "Willful misconduct' means something different from and more than negligence, however gross. * * *"

No case has come to our attention which holds that a cause of action for wilful misconduct can be stated without stating some specific act or omission that caused the injury, or which holds that the mere act of driving, by one who knows he suffers from certain infirmities that to some extent impair his ability to drive, is sufficient to show wilful misconduct. The demurrer was properly sustained.

Plaintiffs contend that they could have stated sufficient facts if they had been given permission to amend.

Apparently the court was of the opinion that no cause of action could be stated under the circumstances. In Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218, 222, it was alleged that the driver was unskilled; that immediately before the accident he was "sleepy and drowsy;" that he 'had not had any sleep for more than 24 hours, that for a long period of time and many miles of travel before the accident he drove at high and excessive rates of speed on a road that was narrow and unfamiliar to him * * *' This was held to be a sufficient statement to constitute wilful misconduct.

We can see no difference in principle between an act, such as driving at...