Tucker v. Landucci
| Decision Date | 18 January 1962 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Lawriene TUCKER, Plaintiff and Respondent, v. Bertha Alice LANDUCCI, Defendant and Appellant. Civ. 6. |
McCormick, Barstow, Sheppard & Coyle, and Hollis G. Best, Fresno, for appellant.
Miles, Sears & Franson, Robert E. Sears, Avery, Meux & Gallagher, Kendall L. Manock, Fresno, for respondent.
This is an appeal from a judgment for damages because of personal injuries suffered by plaintiff in an automobile collision which occurred at the intersection of Olive Avenue and Marks Avenue in Fresno. Plaintiff was riding in a car owned and operated by defendant Bertha Alice Landucci when it collided with a vehicle driven by the defendant Leland Roy Hansen and owned by Reno P. Coletti, doing business as Reno's Specialized Service. The jury brought in a verdict for $29,000 against all of the defendants. Leland Roy Hansen and Reno P. Coletti did not appeal.
The judgment, as actually entered by the clerk, is erroneous in form. It sets forth the verdict, recites that the judgment as to the defendant Coletti, owner of the car driven by the defendant Hansen, is limited to $5,000, and continues:
'Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged and decreed that said plaintiff, Lawriene Tucker have and recover from said defendants, Leland Roy Hansen, Reno R. Colletti [sic], doing business as Reno's Specialized Service, and Bertha Alice Landucci, the sum of $24,000.00 * * *.'
The judgment is in fact for $29,000 against all defendants with a limitation, however, as to the defendant Reno P. Coletti, doing business as Reno's Specialized Service, to the sum of $5,000, that being the maximum for which the owner of the Hansen car was liable. (VEH.CODE, § 402 .)1 The trial judge should forthwith order a correction of the judgment accordingly, as this was a clerical error. (Fallon v. Brittan, 84 Cal. 511, 514, 24 P. 381; George v. Bekins Van & Storage Co., 83 Cal.App.2d 478, 480, 189 P.2d 301; Savings & Loan Society v. Horton, 63 Cal. 310; 29 Cal.Jur.2d Judgments, § 100, p. 14.) For the purpose of this appeal we shall consider the judgment as being so amended.
Respondent sued appellant on two theories; first, that Mrs. Tucker was a passenger in the car, having given consideration for the ride and that therefore proof of simple negligence would be sufficient to sustain a verdict in her favor; the second theory was that although Mrs. Tucker was a guest in the car, the defendant was guilty of wilful misconduct.
It is conceded by appellant that she was guilty of negligence which was a proximate cause of the collision, but she denies wilful misconduct and urges that respondent was a guest and not a passenger. No claim is made on the appeal that the collision was the result of intoxication, or that plaintiff was guilty of contributory negligence. The appellant made a motion for directed verdict and a motion for judgment notwithstanding the verdict and maintains that this court should not only reverse the judgment but should order the entry of a judgment in her favor.
We shall consider first the contention that wilful misconduct was not proven. The only evidence as to the circumstances of the collision, aside from inferences that may be deduced from the physical facts existing after the casualty, is a statement which was taken by a California Highway Patrol officer from the codefendant Mr. Hansen. The plaintiff, Mrs. Tucker, and both of the two defendants, Bertha Alice Landucci and Leland Roy Hansen, claimed at the trial they were suffering from retrograde amnesia and that they were unable to recall the collision itself. The third occupant of the Landucci car, Mrs. Castle, was killed in the accident. The statement made by Mr. Hansen shortly after the crash was that his speed was about 35 miles per hour; that he was going east on Olive and Mrs. Landucci south on Marks; that she was not traveling fast, but at about the same rate of speed as he was; that she ran through a stop sign on Marks Avenue at the entrance of Olive Avenue and that the collision resulted.
One of the Highway Patrol officers estimated the point of impact to be three feet from the westerly edge of Marks Avenue, nine feet westerly of Marks center line and near the center of Olive Avenue. There were six feet of light skidmarks left by Mrs. Landucci's vehicle. No skidmarks were found as a result of the travel of the Hansen vehicle before the point of collision. The Landucci car was damaged at its right front, and the Hansen automobile at its left front. After the crash the cars broadsided, the Hansen vehicle turning in a circular motion and then in a southeasterly direction, coming to rest approximately 70 feet from the estimated point of impact.
Wilful misconduct is thus defined in the leading case of Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194, 197:
'The case of Howard v. Howard, 132 Cal.App. 124, 128, 22 P. (2d) 279, 281, after defining gross negligence as set forth in Krause v. Rarity, 210 Cal. 644, 293 P. 62, 77 A.L.R. 1327, and what is meant by wilful misconduct as set forth in Helme v. Great Western Milling Co., 43 Cal.App. 416, 185 P. 510, declares that "The mere failure to perform a statutory duty is not, alone, wilful misconduct. It amounts only to simple negligence. To constitute 'wilful misconduct' there must be actual knowledge, or that which in the law is esteemed to be the peril to be actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury.'
"While the line between gross negligence and wilful misconduct may not always be easy to draw, a distinction appears from the definition given in that gross negligence is merely such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results, while wilful misconduct involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. It seems clear that in excluding all forms of negligence as a basis for recovery in a guest case, the legislature must have intended that to permit a recovery in such a case the thing done by a defendant must amount to misconduct as distinguished from negligence and that this misconduct must be wilful. While the word 'wilful' implies an intent, the intention referred to relates to the misconduct and not merely to the fact that some act was intentionally done. In ordinary negligence, and presumably more so in gross negligence, the element of intent to do the act is present and any negligence might be termed misconduct. But wilful misconduct as used in this statute means neither the sort of misconduct involved in any negligence nor the mere intent to do the act which constitutes negligence. Wilful misconduct implies at least the intentional doing of something either with a knowledge that serious injury is a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result.'
North Pac. S. S. Co. v. Industrial Acc. Com., 174 Cal. 500, 502, 163 p. 910, 918; Kastel v. Stieber, 215 Cal. 37, 47, 8 P. (2d) 474.'
Merely running through a boulevard stop sign does not in itself constitute wilful misconduct. (Flannery v. Koch, 103 Cal.App.2d 55, 228 P.2d 580; Mish v. Brockus, 97 Cal.App.2d 770, 218 P.2d 849; Winn v. Ferguson, 132 Cal.App.2d 539, 282 P.2d 515.) (See also Porter v. Hofman, 12 Cal.2d 445, 448, 85 P.2d 447; Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601; Stewart v. Kelly, 68 Cal.App.2d 122, 126 155 P.2d 850; Olson v. Jones,172 Cal.App.2d 539, 546, 342 P.2d 440.)
Respondent contends, however, that the question of whether or not there was wilful misconduct was properly submitted to the jury, arguing that there is evidence that the defendant was generally familiar with the area where the intersection was located, that visibility was good, that she should have seen the oncoming Hansen automobile, and that consequently the jury had a right to infer that the defendant deliberately and with the knowledge that injury would probably occur to the occupants of her car, entered the intersection. Plaintiff principally relies upon Munson v. Friedman, 154 Cal.App.2d 73, 315 P.2d 727 and Allen v. Robinson, 85 Cal.App.2d 617, 193 P.2d 498. But in both of these cases there was evidence which showed that the defendant was aware of the danger involved and that he deliberately proceeded in such manner as to warrant the inference that he acted with knowledge that serious injury to his guests probably would result or in a wanton and reckless disregard for their safety.
There is no evidence in this case that appellant intended injury to the persons in her car, or that she drove wantonly or in intentional disregard of their welfare, or that she even had warning of any apprehended danger. Because of her retrograde amnesia, she also had the benefit of a presumption of due care. (Scott v. Burke, 39 Cal.2d 388, 247 P.2d 313.) There was no proof of wilful misconduct; the court should not have submitted this issue to the jury.
We turn to the inquiry whether there was substantial proof that the plaintiff had furnished consideration for the ride, and being, therefore, a passenger rather than a guest,...
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