Moyer v. Dresch

MARKS, J.

This is an appeal from an order granting a new trial where the case was tried before a jury as a matter of right. The order specified that the motion was “granted upon the ground of the insufficiency of the evidence to support the verdict”.

Defendants are husband and wife. Plaintiff is the brother of Florence Dresch and brother-in-law of Theodore Dresch. On June 19, 1932, the three were traveling from Los

[656]

Angeles to Lake Elsinore in an automobile owned by defendants and driven by Mrs. Dresch. Mr. Dresch sat on the front seat of the ear at the driver’s right and plaintiff occupied the rear seat alone.

Mrs. Dreseh had driven a car but two or three times before. Her route took her through the Santa Ana Canyon where the roadway has deviations both as to direction and elevation. In rounding curves Mrs. Dresch frequently permitted the car to swing to the center, or beyond the center, of the road and did not hold it on a true course. On one occasion before the accident when the automobile swung to or over the center of the highway, Mr. Dresch took hold of the steering wheel and brought it back to its own side of the road. At the time of the accident Mr. Dresch put his hands on the steering wheel and the car turned over, causing the injuries to plaintiff which form the subject-matter of this action. Plaintiff testified that before the accident he had protested at the manner in which his sister was driving and asked her to stop so that he could get out. He knew before starting the journey that she was an inexperienced driver.

It is admitted that plaintiff was a passenger and could only recover upon proof of wilful misconduct on the part of one or both of the defendants. (California Vehicle Act, sec. 141%; Stats. 1931, chap. 812, p: 1693.) Wilful misconduct as used in the California Vehicle Act has been so frequently defined that no good purpose could be served by repeating the definition here. (See

Howard

v.

Howard,

132 Cal. App. 124 [22 Pac. (2d) 279];

Walker