Bartlett v. Jackson

THOMPSON, J.

The defendants have appealed from a judgment which was rendered against them in a suit for injuries sustained by the plaintiff while riding as a guest in

[436]

their automobile. The appellants assert that the complaint fails to state facts sufficient to constitute wilful misconduct on their part, and that the findings and judgment are not supported by the evidence.

The complaint fails to state facts sufficient to constitute a cause of action in behalf of a guest on the ground of wilful misconduct under the provisions of section 141% of the California Vehicle Act. The complaint merely alleges that: “As a result of the defendant’s wilful misconduct in the operation of the aforedescribed International truck and trailer, the plaintiff was thrown with great force ...” and injured. No facts are alleged which are deemed to have constituted wilful misconduct.

To this complaint the defendants demurred on the ground that it fails to state facts sufficient to constitute a cause of action, and that it is uncertain for the reason that it cannot be determined “wherein or in what respect said defendant wilfully misconducted himself”. The demurrer was overruled.

In the case of

Norton

v.

Puter,

138 Cal. App. 253, 258 [32 Pac. (2d) 172], it is said:

“Wilful misconduct depends upon the facts of a particular ease, and necessarily involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom.”

We are cited to no authority in this state which holds that a complaint which is based on wilful misconduct, and which merely alleges in general language that the defendant was guilty of wilful misconduct in the operation of his automobile, without reciting any specific facts upon which that charge is based is sufficient as against a special demurrer. In the case of