Hall v. Mazzei

MARKS, J.

This is an appeal from a judgment of dismissal entered after the trial court granted defendant’s motion for nonsuit at the close of plaintiffs’ ease.

In plaintiffs’ opening brief the sole question argued is: Where an automobile is driven by the daughter of the owner, with his express or implied consent, and a guest is injured through the alleged wilful misconduct of the daughter, is the father, owner, liable to respond in damages to the guest where the injuries were caused by the wilful misconduct of the daughter, driver, under the provisions of section 1714¼ of the Civil Code, and section 141¾ of the California Vehicle Act as in effect on August 25, 1931 ? Defendant argues this question in his brief and urges that the evidence fails to show Miss Mazzei, the driver, guilty of wilful misconduct.

Defendant was the owner of a Ford automobile which, on August 25, 1931, the day of the accident, was being driven by his daughter with his knowledge and consent. The accident happened on a clear day on a straight dry road about one and one-half miles north of Mooney’s grove near Visalia in Tulare County.

Plaintiff Dorothy Hall was the only witness testifying as to the accident and the events preceding it. She testified that Miss Mazzei drove from Mooney’s grove north on this road at a speed of forty-five miles an hour; that a Ford coupe passed her; that the windshield on the Mazzei car became loosened and was tightened by Miss Mazzei while she was driving at a speed of forty-five miles an hour. Plaintiff continued her testimony as follows: “Q. And while she was fixing this car the other machine passed and was immediately

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in front of you? A. Yes sir. Q. Did that machine stay immediately in front of you? A. No. Q. And what happened to it? A. It kept going away from us. Q. Do you remember when Miss Mazzei finished tightening the windshield at that time? A. Yes. Q. Now at that time how far in front of your car was the car that had just passed you, approximately? A. Three to four hundred feet. Q. That car that had just passed you was approximately three to four hundred feet in front of you? A. Yes. Q. At that time and when that car was approximately three to four hundred feet ahead of you, you were still going forty-five miles an hour? A. Yes. Q. Now then just tell us what happened from then on. A. Well Miss - after or when she was fixing the windshield I asked her to please slow down or stop because she had to reach out to fix this screw and that when she had one hand on the steering wheel and we were going fast and she wasn’t holding the car any too steady and after she got the windshield tightened she started to gain on the ear and started going faster, and by the time we caught up with the car and were even with the car and the highway is narrow and she did not get past and the car started to slip and she jerked it back onto the highway and went to run into the other car and the other car went out, swerved to one side and she jerked the car back out into the sand and as she jerked it back it turned over. Q. At the time that you were just about to pass this other automobile, how fast would you estimate the speed of the car driven by Miss Mazzei? A. At least sixty. Q. Yes. Now was there any conversation at that time between you and Miss Mazzei? A. Yes. Q. What was that? A. Well just as we caught up to the car, I had driven the car quite a bit and I realized it was almost impossible to pass the' ear, that the road was too narrow and the sides of the highway had just been worked on and this soft shoulder and I asked her not to try to pass the car because it was going fast itself. Q. What did you say; what words did you use? A. Let’s not try to pass it. Q. And what did she say? A. She didn’t say anything. Q. What did she do? A. She just laughed and kept on. Q. That highway you say is narrow. Do you know how wide it is? A. Around fifteen feet . . . Q. Now what was the condition of those shoulders at that time, Mrs. Hall? A. Well the ground was soft. Q. Was it smooth like it is now? A.