Opinion
Heily & Blase and DeWitt F. Blase, Oxnard, for appellant.
Parker, Stanbury, McGee, Peckhan & Garrett and Thomas E. Rubbert, Los Angeles, for respondent.
LILLIE, Associate Justice.
Plaintiff, a passenger in defendant's car, sued for personal injuries under the California guest statute (§ 17158, Veh.Code) predicating her action on defendant's wilful misconduct and/or intoxication. Plaintiff's guest status is undisputed. It appears that no claim of intoxication is now urged. She appeals from judgment entered on a jury verdict in favor of defendant.
The evidence presents little or no factual conflict. Defendant, an officer in the Navy stationed at Point Mugu, worked a normal day (5:30 a. m. to 4 p. m.) on Friday, July 20, 1962; after work he went to the Bachelor Officers' Quarters and had at least one beer. Around 6:30 p. m. he met plaintiff, Sylvia Mize, then known as Ensign Kent, and Navy Ensign Harris in the lobby; a larger group had originally planned to drive to the Villa Bella restaurant, but only four went to dinner. Plaintiff and defendant had only been acquainted that day or the day before. The Villa Bella is located 40 or 50 miles from Point Mugu in Encino. They left the Navy Base in defendant's car around 7 p. m.; defendant drove arriving at the restaurant around 8 or 8:15 p. m. After eating dinner they sat around until approximately 2 a. m. drinking beer and singing at the piano bar. Plaintiff was with defendant all evening and was in a position to, and did, observe him during all of said time. When the pianist stopped playing the four left returning to defendant's car in the parking lot. Defendant drove; shortly after they left, plaintiff and Sylvia decided to go to sleep and did so. Upon leaving the freeway some 5 or 6 miles from Point Mugu, defendant felt tired and sleepy and opened the rear window of his station wagon in order to admit fresh air, but fell asleep and crashed into a telephone pole causing the injuries of which plaintiff complains. The accident occurred around 2:50 a. m. Plaintiff had been asleep from the early part of the trip until the impact.
Plaintiff claimed that defendant was guilty of wilful misconduct in that after consuming considerable beer, staying out late, being without sleep for at least 22 hours and fighting sleep during the last part of the ride home, he nevertheless continued to drive.
First, appellant argues, without citation of controlling California authority, that contributory negligence is not a proper defense in guest act cases and it was error to submit the issue to the jury. She does not challenge the instruction as to form or legal content. California courts have long allowed the defense of contributory negligence in guest act litigation. (Schneider v. Brecht, 6 Cal.App.2d 379, 384, 44 P.2d 662; Enos v. Montoya, 158 Cal.App.2d 394, 401, 322 P.2d 472; Bradbeer v. Scott, 193 Cal.App.2d 575, 578, 14 Cal.Rptr. 458; Davis v. Nelson, 221 Cal.App.2d 62, 66, 34 Cal.Rptr. 201, 203.) A recent statement of the law is found in Davis v. Nelson, 221 Cal.App.2d 62, at page 66, 34 Cal.Rptr. 201, at page 203: 'As a general rule, contributory negligence on the part of an injured plaintiff is no defense to an action based upon a claim of fense to an action based upon a claim of wilful 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; Prosser, Torts 2d ed. pp. 289-290.) The cases which uphold the general rule however, are not cases involving claims of a guest against the driver of an automobile in which the guest is riding at the time of the injury. [Citations.] * * * Nevertheless, in cases arising out of automobile accidents, where the guest-host relationship is involved, a long line of cases has held that contributory negligence may be a defense to a charge of wilful misconduct on the part of the host, where the guest's conduct is such that it is a part of, or an inducing cause of the host's wilful misconduct. [Citations.] Whether the conduct of the guest is a part of or an inducing cause of the wilful misconduct of the host is a question of fact, to be decided by the jury from all of the evidence in the case. The fact that In cases in which liability is founded on the California guest act, appellant deplores the employment of the doctrine of contributory negligence as 'illogical and unreasonable,' 'intolerable,' 'unjust' and contrary to the rule in an overwhelming majority of jurisdictions having similar statutes. In a lengthy argument directed primarily to 'logic and reason,' she asks us to re-examine California's position and, in the face of authorities to the contrary, change its fundamental legal concept of guest statute litigation by eliminating the defense of contributory negligence. It appears, however, that her real objection is directed to the guest act itself; as for a change in what she terms a 'horrendously-troublesome statute,' this is a matter for the Lagislature. As for a repudiation of the defense of contributory negligence in guest act cases, we find no justification for changing case law long established by California courts.
Assuming, and correctly so, that her 'view of the law may not invariably be identical with that of the court,' appellant submits that it was reversible error for the trial judge to instruct on contributory negligence because the evidence does not support such a defense. Assuming then that the evidence shows defendant's wilful misconduct, is there here a factual question of plaintiff's fault? The record demonstrates her voluntary and complete participation with defendant in the evening's activities, including a steady consumption of beer in a bar until 2 a. m.; and her conduct to be of such a character as to contribute and become a part of, and the inducing cause of defendant's wilful misconduct. The evidence shows that plaintiff was as much a part of the events leading up to defendant's condition prior to the impact as was defendant. It was the duty of the court to instruct the jury on every theory of the case finding support in the evidence. (ESPINOZI V. ROSSINI, 247 Cal.App.2d ----, ----, 55 CAL.RPTR. 205 .
Advance Report Citation: 247 A.C.A. 108, 120.
Plaintiff, who had just met defendant that day or the day before, was with him continuously from 6:30 p. m. on July 20 to 2:50 a. m. on July 21. When they arrived at the Villa Bella around 8 p. m. they set at a table and ordered beer when the menus were brought; they also had a round of beer while the food was being prepared, and another during dinner. Some ate pizza, others spaghetti. About 9 p. m., after finishing their meal, they moved to a table near the piano in the bar where they continued their beer drinking. They drank beer and sang until 2 a. m.; defendant drank more and sang less than the others. While plaintiff could not remember the number of beers defendant drank, she testified that he had more than anyone else; she could not estimate how many she had. Sylvia testified that defendant drank more than any of the rest, and that she had between five and eight beers. There is no evidence that plaintiff fell asleep of left the party during any of this time; it does show that she was continuously in the presence of defendant from the time she met him at the Bachelor Officers' Quarters until the accident and, until she fell asleep in the car on the return trip, was in a position to observe and did observe defendant all evening. She ate, drank and sang with him. Then a little after 2 a. m. they left the bar; nothing was said concerning who, other than defendant, was going to drive; neither plaintiff nor anyone else had objection to his driving; she admitted that she did not stop to think whether there was any reason why defendant should not drive If the jury concluded that defendant was guilty of wilful misconduct, there was sufficient evidence from which the jury could have found contributory fault on the part of plaintiff. Two significant facts are apparent. First, plaintiff fully participated with defendant in a full 6 hours of drinking extending to the early hours of the morning--whatever defendant did during this time plaintiff did also; and her total participation with defendant was in the kind of activity, for a period of time and under circumstances that could only contribute to and become a part of and the inducing cause of defendant's wilful misconduct. Second, after drinking with defendant all evening (the consumption of food was early and appears to have been negligible) plaintiff not only failed to concern herself with matters involving her own safety, getting into the vehicle without giving thought to the return trip, but voluntarily and effectively eliminated her ability to look out for her own safety (by giving aid or warning to defendant who later was to be in need of assistance because of his own condition which she helped create) by deciding with Sylvia to go to sleep. While her decision to go to sleep would not in and of itself constitute negligence, the jury was entitled to consider it on the issue of contributory fault with the other evidence of--her participation with defendant in 6 hours of beer drinking; her voluntary riding in a car driven by defendant, whom she scarcely knew and with whose capacity for drinking she was unfamiliar; her complete indifference to defendant's condition after engaging with him in the night's activities; her creation of an atmosphere of quiet, conducive to drowsiness which brought about defendant's condition which culminated in the accident, by her somnolence knowing that Sylvia too would go to sleep; and her inability, because of her condition, to be of any assistance to defendant.
In Schneider v. Brecht, 6 Cal.App.2d 379, 44 P.2d 662, one of the early leading cases, plaintiff and defendant engaged in a 'drinking carousal to a considerable extent' for the purpose of having a 'free and easy' afternoon drinking in various places. Said the court at pages 383-384, 44 P.2d at page 664: '* * * where the negligence of the plaintiff is of such a character that it contributes to, and really becomes a part of, and the inducing cause of the defendant's wilful misconduct, no recovery can or should be had.' Again at pages 387-388, 44 P.2d at page 666: 'The case cited by the appellant to the effect that ordinary negligence constitutes no defense to a charge of wilfulness or wantonness, we think inapplicable where the facts show that the plaintiff was guilty of every act complained of, as against the defendant, and participated in bringing about the mental condition of the defendant which culminated in the collision.' In Bradbeer v. Price v. Schroeder,
Schneider v. Brecht, Davis v. Nelson,We can accept neither appellant's argument supportive of her contention that if contributory negligence is a proper defense in guest statute litigation applicable, too, must be the doctrine of last clear chance, nor her challenge 'that this court will have to blaze the trail * * * by applying syllogistic logic in reasoning from nonlegal fundamentals to the unknown conclusion to which the doctrine applies.' She cites no controlling authority for her argument but for the sake of discussion places herself in an 'obvious position of danger' from which, through her own fault, she was unable to escape because of her somnolent condition, of which defendant was aware, and argues that she should have the benefit of the doctrine, because defendant had the last clear chance to avoid the accident 'by doing something more than rolling down the windows and pushing on undaunted. the windows and pushing on undaunted.' the doctrine of last clear chance and submitted to the trial judge argument thereon similar to the one she now makes; he refused to give the instruction on the ground that application of the doctrine would emasculate the guest statute. With this we agree.
'The doctrine of last clear chance may be invoked if, and only if, the trier of the facts finds from the evidence: (1) that the plaintiff was in a position of danger and, by his own negligence, became unable to escape from such position by the use of ordinary care, either because it became physically impossible for him to escape or because he was totally unaware of the danger; (2) that defendant knew that plaintiff was in a position of danger and further knew, or in the exercise of ordinary care should have known, that plaintiff was unable to escape therefrom; and (3) that thereafter defendant had the last clear chance to avoid the accident by the exercise of ordinary care but failed to exercise such last clear chance, and the accident occurred as a proximate result of such failure.' (Brandelius v. City & County of San Francisco, 47 Cal.2d 729, 743, 306 P.2d 432, 440.) The conventional legal explanation of this substantial limitation of the contributory negligence defense is that the defendant's immediate negligence is the proximate cause and the plaintiff's earlier negligence is only a remote cause. (Sparks v. Redinger, 44 Cal.2d 121, 124 ,279 P.2d 971.) By the 'guest law' (§ 403, Veh. Code) passed in 1929, the Legislature took away the right of action for injury or death to a guest in a motor vehicle resulting from the negligence of the driver. As originally enacted the statute permitted recovery in case of intoxication, wilful misconduct or gross negligence, but in 1931 it was amended to eliminate the proviso as to gross negligence and now recovery can be had only where injury or death 'proximately resulted from the intoxication or wilful misconduct of the driver.' (§ 17158.) This statute protects the driver from liability to guests for ordinary negligence. (Benton v. Sloss, 38 Cal.2d 399, 402-403, 240 P.2d 575.) Thus, under the California guest act a driver owes no duty of ordinary care toward his guest; all he owes is a duty to refrain from wilful misconduct or intoxication. '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. * * * 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.' (Howard v. Howard, 132 Cal.App. 124, 129, 22 P.2d 279, 281.) Moreover, it is clear under the express language of section 17158, Vehicle Code, that recovery can be had only where the injury or death 'proximately resulted' from the wilful misconduct or intoxication of the driver. 'The section contemplates that the only circumstance under which the operator of a vehicle becomes liable for his act is: (1) when the injury to the guest proximately results from the intoxication of the operator, or, (2) from his wilful misconduct.' (Fairman v. Mors, 55 Cal.App.2d 216, 218, 130 P.2d 448, 449.)
However, the fact that the host is guilty of wilful misconduct is not of itself determinative of liability, because the question of the guest's fault, if any, still remains; but ordinary contributory negligence appears to be not sufficient to bar recovery. Under California case law the contributory fault must be of a higher degree than ordinary contributory negligence; the guest's conduct must be 'a part of, or an inducing cause of the host's wilful misconduct.' (Davis v. Nelson, 221 Cal.App.2d 62, 66, 34 Cal.Rptr. 201, 203; Schneider v. Brecht, 6 Cal.App.2d 379, 383-384, 44 P.2d 662; Price v. Schroeder, 35 Cal.App.2d 700, 703-704, 96 P.2d 949; Bradbeer v. Scott, 193 Cal.App.2d 575, 577, 14 Cal.Rptr. 458.)
Inasmuch as wilful misconduct or intoxication of the driver is required for recovery in guest act cases and under the statute the injury or death must have proximately resulted therefrom, and under California cases more than contributory negligence is necessary to show plaintiff's fault, it is not reasonable under the strict construction of the guest law required by our courts (O'DONNELL V. MULLANEY, 66 Cal.2d ----, ----, 59 CAL.RPTR. 840, 429 P.2d 160 ) that of these standards of care be destroyed by defendant's simple negligence just before the impact. Incompatible with the intent of the Legislature, reflected in the express provisions of section 17158, Vehicle Code, permitting recovery only where the injury has 'proximately resulted' from the driver's wilful misconduct, is the ultimate result of the application of the last clear chance doctrine--recovery by a guest for an injury proximately resulting from the driver's negligence. It would permit the jury, after finding and attributing to the driver wilful misconduct and to his guest contributory fault, to hold the driver liable for his failure to exercise ordinary care upon discovering the guest in a position of peril; this does complete violence to the statute which was enacted to eliminate recovery Another query arises if the doctrine of last clear chance were to apply to govern the ultimate disposition of liability. When, in the course of defendant's conduct giving rise to liability, does wilful misconduct (which must be established for a prima facie case) end and simple negligence (which will defeat the defense of contributory fault) begin? In the instant case, for example, the wilful misconduct which plaintiff must prove for a prima facie case of liability arose when defendant became sleepy. Up to this point, although the evidence showed that defendant had not slept for 22 hours, 6 of which he had spent in drinking activities, his wilful misconduct did not exist; it was not established until he felt sleepy and opened the window for fresh air, then, according to defendant's testimony, he fell asleep and the accident occurred. It was at that brief moment between feeling sleepy and falling asleep that defendant's continued driving constituted wilful misconduct; it was then that plaintiff's prima facie case of liability was established. Thus, at what point could defendant's ordinary negligence be shown to defeat the defense of contributory fault and establish his liability under the statute?
Advance Report Citation: 86 A.C. 1048, 1051.
We agree with respondent that if the Legislature desired to allow the guest to recover against her host on a theory of simple negligence it would not have enacted the guest statute in the first instance. Until the Legislature repeals the guest act or modifies the same, we do not think a circumvention of the statute should be permitted by the application of the last clear chance doctrine.
In the light of our holdings, we will not indulge in speculation as to what the jury found in order to justify an affirmance of the judgment on other grounds.
The judgment is affirmed.
WOOD, P. J., and FOURT, J., concur.