Bradbeer v. Scott

HOYT, J. pro tem.

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This is an action to recover for per sonal injuries sustained by appellant in an automobile accident. The jury brought in a verdict for respondent and the appellant takes this appeal.

Appellant, a married woman 36 years of age, was vacationing in Santa Cruz County without her husband. Respondent was unmarried and 21 years of age. They met in a bar in Capitola on August 1, 1958. On the next evening at about 10 o’clock they met again by appointment, and began an evening of drinking alcoholic liquor from place to place in the county, culminating in an interlude of illicit relations in a motel in Scotts Valley. They left Scotts Valley about 3 o’clock in the morning. Respondent was driving a sports car in which appellant was riding as a guest. The accident happened about 3 -.30 or 4 a. m. Respondent failed to negotiate a curve on the “windy, twisty, narrow road,” and smashed

[577]

into a culvert on the other side of the highway. Appellant was injured in the accident.

At the pretrial hearing, on motion of appellant’s counsel, the allegations of drunkenness and intoxication were stricken. This left wilful misconduct as the only ground for respondent’s liability. Respondent defended the action with general denials and allegations of contributory negligence and assumption of risk.

Appellant contends that respondent committed prejudicial error by calling “to the attention of the jury an illicit relationship between the parties where the pre-trial conference order has specifically excluded the matter.” The portion of the testimony to which appellant objects reads as follows: [By Mr. Grwsky] : “Q. Now, where did you go from Felton? A. To Scotts Valley. Q. What was your destination in Scotts Valley? A. A motel. [Objection by Mr. Warden was overruled.] Q. Did you have anything to drink at Scotts Valley? A. No, sir. Q. How long did you remain in the Scotts Valley area ? A. Oh, maybe two hours, two and a half, around there. Q. Did you have anything further to drink from the time you were in Felton to the time the accident occurred? A. No, sir. Q. Now, when you departed from Scotts Valley what was your destination? A. It was to take her back to Brookdale Lodge.” There is nothing in this testimony about illicit relations. No illicit relationship was called to the attention of the jury by respondent. If there was speculation by the jury it was as a result of appellant’s objecting that the words “a motel” were prejudicial error. Appellant cannot complain about something which she did herself.