Edwards v. Bodenhamer

CRAIL, J.

This is an appeal from a judgment against the defendant for damages arising out of an automobile collision in which the defendant was the driver and the plaintiff was a passenger, and in which the jury impliedly found the defendant guilty of wilful misconduct.

It is the first contention of the defendant that the evidence was insufficient to sustain the implied finding of wilful misconduct as such term is used in section 141¾ of the California Vehicle Act. In the recent case of

Meek

v.

Fowler,

3 Cal. (2d) 420 [45 Pac. (2d) 194], the Supreme Court said that said phrase has been variously defined in the many cases and that the court would not attempt to reconcile the several definitions and applications given to it, and then adopted as a satisfactory definition the language taken from

Turner

v.

Standard Oil Co.,

134 Cal. App. 622 [25 Pac. (2d) 988], as follows: “ ‘Wilful misconduct’, within the meaning of this statute, may then be defined as intentionally doing something in the operation of a motor vehicle which should not be done or intentionally failing to do something which should be done under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result. ’ ’ And also the following quotation from the case of

Howard

v.

[307]

Howard,

132 Cal. App. 124 [22 Pac. (2d) 279]: “To constitute ‘wilful misconduct’ there must be actual knowledge, or that which in the law is esteemed to be the equivalent of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a conscious failure to act to the end of averting injury. . . . 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.” We have carefully examined the record in the light of this definition of wilful misconduct, and viewing the evidence in the light most favorable to the party which prevailed at the trial, which it is our duty to do, we are satisfied that there is sufficient evidence to show wilful misconduct, and that the verdict of the jury and the judgment of the court to that effect should not be disturbed.