Stotts v. Blickle

California Supreme Court Feb 28, 1934 No. Docket No. Sac. 4803.Published

Before: Langdon

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Holding. The court held that the 1931 amendment to the California Vehicle Act, which removed 'gross negligence' as a basis for guest liability, did not retroactively abate a cause of action for wrongful death that had already accrued.

Issues

Whether the 1931 amendment to the California Vehicle Act, eliminating 'gross negligence' as a basis for recovery, retroactively abated a pending wrongful death action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The right of action against a host for wrongful death of a guest is no more destroyed by the 1931 amendment than by the 1929 statute.”

“There was no abolishment of the right or cause of action, but only a change in the proof required, not to maintain the action, but to permit a recovery.”

LANGDON, J.

This is an action by the father of a minor to recover for the wrongful death of said minor. The deceased, a child nine years of age, was a guest in an automobile driven by defendant, his uncle. The accident occurred on May 17, 1931. At that time section 141% of the California Vehicle Act provided that an action based upon injuries or death of a guest in a motor vehicle could be maintained upon a showing of “intoxication, wilful misconduct or gross negligence” of the operator. Plaintiff

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alleged gross negligence and presented evidence in support of the allegation, which resulted in

verdict in his favor.

The evidence shows that on the morning of the accident, defendant drove from Woodland to Sacramento, observing that the car did not steer properly. On the way back to Woodland, in the afternoon, he felt drowsy and tired, as a result of lack of sleep the previous night. The car was still behaving erratically, one wheel occasionally leaving the paved portion of the highway. At about 5 P. M. he was driving along a clear highway, about thirty miles per hour, when suddenly the car left the pavement and for about one hundred and fifty feet was off the road, until it struck á power pole located about seven and one-half feet from the edge of the highway. Defendant did not apply the brakes, and made no attempt to turn the car back to the road. The deceased’s mother, sitting in the back, called to him twice. He apparently did not hear the first call, but at the second he swerved the car and struck the pole a glancing blow which threw the deceased out of the car and killed him. Defendant’s declarations and testimony, together with the foregoing circumstances, established by several witnesses, justified the inference that he dozed off at the time of the accident. This, coupled with his failure to repair the car at Sacramento, makes out a sufficient case of “failure to exercise slight care”, or gross negligence. A very similar case is

Malone

Clemow,

111 Cal. App. 13 [295 Pac. 70]. See, also,

Stotts v. Blickle

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LANGDON, J.

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