Williams v. Carr

• Decision Date: 16 May 1968
• Citation: 68 Cal.2d 579,68 Cal.Rptr. 305,440 P.2d 505
• Court: California Supreme Court
• Parties: , 440 P.2d 505 Rebecca H. WILLIAMS, Plaintiff and Appellant, v. Leo Francis CARR, Defendant and Respondent. L.A. 29531

Page 305

68 Cal.Rptr. 305

68 Cal.2d 579, 440 P.2d 505

Rebecca H. WILLIAMS, Plaintiff and Appellant, v. Leo Francis CARR, Defendant and Respondent.

L.A. 29531.

Supreme Court of California

May 16, 1968.

Heily & Blase, DeWitt F. Blase, Oxnard, and Edward L. Lascher, Ventura, for plaintiff and appellant.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Robert G. Beloud, Upland, and Leonard Sacks, Los Angeles, as amici curiae on behalf of plaintiff and appellant.

Parker, Stanbury, McGee, Peckham & Garrett and Thomas E. Rupert, Santa Ana, for defendant and respondent.

PETERS, Justice.

By a vote of 10 to 2 the jury returned a verdict for defendant in this action to recover for personal injuries sustained when defendant's car struck an electic pole. Plaintiff, who was a guest in the car, has appealed from the ensuing judgment.

There is very little conflict in the evidence.

On Friday, July 20, 1962, defendant, a Naval officer, arose about 5:30 a.m. and went to work. After work, about 4 p.m., defendant thought he might have had a beer although his memory was unclear. About 6:30 in the evening, he met plaintiff, Ensign Kent (a Wave officer), and Ensign Harris in the lobby of the Point Mugu Bachelor Officers Quarters. Defendant had first met plaintiff either that day or the day before.

The group went to the Villa Bella restaurant in defendant's station wagon. The restaurant is located about 40 miles from Point Mugu, and they arrived there about 8 p.m., and ordered dinner and some beer. About 9 p.m., having finished dinner, they moved to a table near a piano where they remained the balance of the evening, drinking beer and joining with other patrons in community singing until about 2 a.m. when they left.

Defendant estimated that he had five to seven 8-ounce glasses of beer during the evening. Ensign Kent testified that she had from five to eight beers and that defendant probably had more.

Upon leaving the restaurant the four of them entered defendant's car, with defendant driving, Ensign Kent sitting beside him in the front seat and plaintiff and Ensign Harris in the rear. Defendant seemed to walk normally, and there was nothing unusual about his driving as the return trip commenced. The two women, plaintiff and Ensign Kent, talked for about 15 minutes and then went to sleep. They were asleep when the accident occurred at approximately 2:50 a.m., a few miles from Point Mugu.

Defendant said that he did not feel that his driving ability was affected by the consumption of the beer, although he recognized that the beer had an effect on his mental alertness which was not apparent to his guests. He did not say anything to the others about his condition. About five minutes before the accident, defendant felt tired, and he stopped the car. He rolled down the tailgate window and the driver's window so that air would circulate in the car and he would stay awake. At that time the other people in the car were asleep. Defendant had been awake for 22 hours.

Defendant's former wife testified that beer would make him sleepy, and defendant admitted that he was aware of that fact when he stopped the car and opened the windows. He did not attempt to awake the guests or tell any of them of his tiredness. He did not recall whether he turned on the radio. He then started to drive again and within a few minutes fee asleep and drove off the road and into the pole.

It is undisputed that plaintiff was a 'guest' in defendant's car as that term is defined in section 17158 of the Vehicle Code. Under that section she could not recover from defendant for the substantial personal injuries received in the accident unless she established that her injuries proximately resulted from the intoxication or willful misconduct of defendant. The trial judge instructed the jury on willful misconduct and intoxication. He also instructed the jury that plaintiff could not recover for mere negligence and that contributory negligence on the part of plaintiff would bar her recovery.

As a general rule, contributory negligence on the part of an injured plain tiff Several justifications have been offered for the general rule. Many commentators as well as some courts have criticized the all-or-nothing aspects of the contributory negligence doctrine, which means that a slight amount of fault on the part of the victim will exonerate a very negligent defendant and require the victim who is only partially at fault to bear the entire loss. Willful, wanton, and reckless conduct differs from negligence not only in degree but also in kind and in the social condemnation attached to it, and a serious wrongdoer should not escape liability because of the less serious or even perhaps trivial misstep of his victim. (2 Harper and James, The Law of Torts (1956), pp. 1207, 1213--1215; Prosser on Torts, supra, p. 436.) Willful misconduct of the plaintiff will ordinarily bar an action for willful misconduct of the defendant. (See, e.g., 2 Harper and Janes, supra, p. 1214.)

is no defense to an action based upon a claim of willful misconduct. (Seeger v. Odell, 18 Cal.2d 409, 414, 115 P.2d 977, 136 A.L.R. 1291; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 870, 118 P.2d 465; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 522--523, 74 P. 15, 63 L.R.A. 238; Esrey v. Southern Pacific Co., 103 Cal. 541, 544--545, 37 P. 500; Cawog v. Rothbaum, 165 Cal.App.2d 577, 589--592, 331 P.2d 1063.) This rule is followed in other jurisdictions. (See Rest.2d Torts, §§ 483, 503; Prosser on Torts (3d ed. 1964) p. 436.) Dean Prosser states unequivocally that 'all courts' have held that ordinary negligence on the part of plaintiff will not bar recovery for 'that aggravated form of negligence, approaching intent, which has been characterized variously as 'willful,' 'wanton,' or 'reckless. " (Prosser on Torts, supra, p. 436.)

The difference between willful misconduct and negligence, although sometimes difficult to determine as applied to specific facts, is substantial. An intent to injure is not a necessary ingredient of willful misconduct within the guest statute; willful misconduct implies the intentional doing of something either with knowledge, express or implied, 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 consequences. (E.g., Cope v. Davison, 30 Cal.2d 193, 198 et seq., 180 P.2d 873, 171 A.L.R. 667; People v. Young, 20 Cal.2d 832, 836--837, 129 P.2d 353; Meek v. Fowler, 3 Cal.2d 420, 425, 45 P.2d 194.) Negligence, of course, is the failure to exercise ordinary care under the circumstances. (E.g., Donnelly v. Southern Pacific Co., supra, 18 Cal.2d 863, 870 et seq., 118 P.2d 465.)

There are a substantial number of cases in California that have considered the nature of the conduct of the plaintiff which will bar recovery under the guest statute. Although all of the cases seem to state or hold that contributory negligence is a defense, examination of them shows that they are not in accord in determining the nature of the conduct which constitutes a bar.

One group of cases has held that although ordinary negligence is not a defense, contributory negligence is a defense to a charge of willful misconduct or intoxication of the host where the guest's 'conduct is such that it is a part of, or an inducing cause of the host's willful misconduct.' (Davis v. Nelson, 221 Cal.App.2d 62, 66--68, 34 Cal.Rptr. 201, 203; Bradbeer v. Scott, 193 Cal.App.2d 575, 578, 14 Cal.Rptr. 458; Mountain v. Wheatley, 106 Cal.App.2d 333, 335, 234 P.2d 1031; Johnson v. Marquis, 93 Cal.App.2d 341, 346, 209 P.2d 63; Amidon v. Hebert, 93 Cal.App.2d 225, 229, 208 P.2d 733; Pennix v. Winton, 61 Cal.App.2d 761, 763, 765, 143 P.2d 940, 145 P.2d 561; Reposa v. Pearce, 11 Cal.App.2d 517, 518, 54 P.2d 475; Schneider v. Brecht, 6 Cal.App.2d 379, 383 et seq., 44 P.2d 662.)

It is not entirely clear whether the phrase 'conduct is such that it is a part of, or an inducing cause of the host's wilful misconduct' is a substantial limitation on the defense of contributory negligence. Some of the cases contain language that the plaintiff must be 'guilty of every act complained of, as against the defendant, and On the other hand, several of the cases hold that the defense may be established where it is shown that the plaintiff's conduct contributed only to part of the defendant's misconduct (e.g., Davis v. Nelson, supra, 221 Cal.App.2d 62, 67--68, 34 Cal.Rptr. 201), and in the light of these cases, it would appear that the seemingly limiting phrase, referring to conduct which is a part of, or an inducing cause of the host's misconduct, is not a substantial limitation on the defense of contributory negligence. Negligence on the part of the plaintiff, of course, is not a defense unless it contributed to and was a proximate cause of the accident, and the seemingly limiting phrase, when viewed as in Davis, does not place any further substantial limitation on the defense of contributory negligence in guest cases. When the seemingly limiting phrase is so viewed, it becomes apparent that the cases involve a contradiction in terms insofar as they state that ordinary contributory negligence is not a defense.

[440 P.2d 510] participated in bringing about [68 Cal.2d 585] the mental condition of the defendant which culminated in the collision' (e.g., Schneider v. Brecht, supra, 6 Cal.App.2d 379, 387--388, 44 P.2d 662, 666; Pennix v. Winston, supra, 61 Cal.App.2d 761, 765--766, 143 P.2d 940, 145 P.2d 561), and taken literally, the quoted language would constitute a substantial limitation on the defense of contributory negligence in guest cases. For example, in the instant case, although plaintiff engaged with defendant in drinking beer and social activities until early in the morning, which certainly were contributing factors to his falling asleep, she cannot be charged with...