Pappas v. Bogard

DOOLING, J.

Defendant appeals from a judgment entered upon a verdict for personal injuries received by plaintiff while riding as a guest in defendant’s automobile. It was not contended that defendant was intoxicated and the sole basis of liability presented to the jury was defendant’s wilful misconduct. (Yeh. Code, § 403.)

The evidence most favorable to plaintiff would support a finding that while driving southerly on Eleventh Street in San Francisco, and just after being asked by plaintiff: “Why don’t you slow down?” defendant without slackening the speed of his ear ignored an arterial stop sign, drove into the intersection of Folsom Street at a speed of 40 miles per hour and collided there with a car which had entered the same intersection on Folsom Street.

While defendant asserts that a finding that the defendant was guilty of wilful misconduct was a close question no claim is made that the evidence is insufficient as a matter of law to support such finding. The sole contentions are that the trial court gave one erroneous instruction, and refused one proper and necessary instruction proposed by defendant, both on the subject of wilful misconduct and that as a result the ease was submitted to the jury in a prejudicially erroneous legal framework.

The instruction given by the court of which defendant complains is B.A.J.I. 209J:

“You will note from the foregoing that although wilful misconduct is a form of negligence, it is something more tlym negligence; more even than what might be called gross negn gence. A guest may not recover against his [her] host-driver

[601]

or against the owner of the vehicle in which he [she] was a guest for negligence, however it might be classified, unless that negligence amounted to wilful misconduct, as defined in these instructions.”

This instruction was expressly disapproved in

Lynch

v.

Birdwell,

44 Cal.2d 839 [285 P.2d 919], a fact which is noted in 2 B.A.J.I., 4th edition, page 697, in the note preceding this instruction. We are moved to the comment that B.A.J.I. is a form-book upon which courts and lawyers rely for correct instructions and, after the express disapproval of B.A.J.I. 209J, leaving that instruction in the form-book, even with a cautionary note (which may well not be read by counsel or judge in the pressure of the trial of a particular case) constitutes a trap for counsel and the courts which tends measurably to impair the value of B.A.J.I. for the very purpose which it is designed to serve. Criticism of particular court decisions is a proper function of a text-book and, if the criticism is sound, may and often does perform a very useful function in the long-range growth of the law. But what is proper in a text-book ceases to be proper in a form-book, whose function should be to provide forms which can be relied upon to state the law in a fashion which has met the approval of the courts.