SPENCE, J., Dissenting. I dissent. The effect of the instructions given by the trial court at the request of respondents was to advise the jury that anyone who voluntarily drives an automobile at a speed prohibited by law is guilty of wilful misconduct within the meaning of the guest statute. There is no doubt that these instructions were erroneous. (Forsman v. Colton, 136 Cal. App. 97 [28 Pac. (2d) 429]; Olson v. Gay, 135 Cal. App. 726 [27 Pac. (2d) 922] ; Turner v. Standard Oil Co. of California, 134 Cal. App. 622 [25 Pac. (2d) 988] ; Walker v. Bacon, 132 Cal. App. 625 [23 Pac. (2d) 520]; Howard v. Howard, 132 Cal. App. 124 [22 Pac. (2d) 279].) The error is apparently conceded in the majority opinion, but it is there held that appellant is in no position to complain of the giving of said instructions. With this conclusion I cannot agree.
The trial of the cause was had before there had been any judicial determination of the meaning of wilful misconduct as that term is employed in the guest statute. Throughout the trial the parties proceeded upon entirely different theories. Respondents took the position that any voluntary violation of a statute was sufficient. The trial court adopted this view. Appellant, on the other hand, claimed throughout the trial that respondents were required to show that appellant had wilfully injured respondent or had wilfully run off the road and .into the pole. This extreme view finds some support in the minority opinion in Walker v. Bacon, supra, but neither the position taken by the respondents nor the position taken by appellant at the trial can be sustained in view of the above-mentioned decisions establishing the meaning of wilful misconduct as used in said statute.
In the case of Turner v. Standard Oil Co. of California, supra, the court defined wilful misconduct as follows: “Willful 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 [316]under circumstances disclosing knowledge, express or to be implied, that an injiiry to a guest will be a probable result.” (Italics ours.) This definition appears to be sound in the light of the legislative history of. the guest statute and it finds approval in the other authorities above mentioned. While the intentional violation of a statute constitutes negligence and may constitute gross negligence or even wilful misconduct under certain circumstances, wilful misconduct contemplates something more than a mere intentional violation of one of our numerous statutory traffic regulations. To permit recovery on the theory of wilful misconduct upon any showing short of that indicated in the approved definition would result in the complete nullification of the obvious attempt on the part of the legislature to deny recovery to guests in cases involving mere negligence or even gross negligence. The rule may now be said to be established that even the wilful or intentional violation of a statute will not suffice unless the circumstances warrant the inference that the driver knew that injury to his guest would be the probable result rather than a mere possibility. Wilful misconduct, as thus defined, involves conduct which is inherently wrong because the act is intentionally done or the omission is intentionally made with knowledge of the probability of injury to the guest and it eliminates from its scope conduct which is wrong solely because of the violation, intentional or otherwise, of some traffic regulation. Invoking certain terms frequently employed with respect to public offenses, it may be said that wilful misconduct implies conduct which is malum in se because of such intent coupled with such knowledge, rather than conduct which is merely malum prohibitum. 1
There can be little doubt that the giving of the erroneous instructions was prejudicial. It may be conceded that the testimony set forth in the majority opinion was sufficient to warrant a finding of wilful misconduct, but the evidence was highly conflicting in every portion thereof which had any tendency to show wilful misconduct. The evidence offered by appellant showed among other things that prior to the accident she was driving on the right side of the road at the rate of 40 to 45 miles per hour; that she did not swerve the car from one side of the road to the other; that nothing was said by anyone about her speed or manner of [317]driving; that immediately before the accident someone in the back seat said something which she turned her head to hear; that an instant later she saw the pole looming in front of her, whereupon she pulled the wheel as hard as she could to the left to avoid it, but the car skidded and the right side thereof struck the pole. It is entirely probable that the jury based its finding of wilful misconduct solely upon the testimony offered by respondents relating to speed and under these circumstances it cannot be said that the giving of the erroneous instructions was not prejudicial. In Walker v. Bacon, supra, the cause was reversed because of the instructions and in that case the instructions were far more favorable to the defendant than were the instructions in the present case.
The majority opinion holds that appellant may not complain of the error in these instructions because she did not present the point in the trial court and may not now change her theory of the ease. A reading of the record shows that appellant frequently made her point in the trial court and argued her motion for nonsuit upon the theory that there was no evidence whatever of any wilful misconduct. The argument on the motion is not set forth in full, but the record shows that after appellant made her point, argument by counsel followed. I find no change in the record or on this appeal of appellant’s theory of her case. Instructions 18 and 19, proposed by appellant and given by the trial court, were purely defensive instructions and I cannot agree with the majority opinion that said instructions were substantially the same as the instructions given at thé request of respondents. As above stated, the effect of the challenged instructions was'to tell the jury that if appellant voluntarily drove at a speed prohibited by law, it was not necessary to make any further showing of wilful misconduct. In other words, a showing of negligence was thereby declared sufficient to impose liability. On the other hand, the jury was told in instruction 19 that neither negligence nor even gross negligence was sufficient. The portion of instruction 19 just mentioned was a correct statement of the law and was in direct conflict with the whole tenor of the several erroneous instructions. The remaining portions of instructions 18 and 19 were not as clear as they might have been, but said portions were negative in form and told the jury in effect [318]that wilful misconduct could not exist without intent, purpose and design. Appellant cannot well be criticised for her failure to propose an affirmative instruction containing an accurate definition of wilful misconduct when the meaning of that term, as used in the guest statute, was in doubt until the subsequent determination thereof by the appellate courts. Under the circumstances it seems to me that the judgment should not be permitted to stand when it is entirely probable that it resulted from the erroneous instructions which, contrary to the intention of the legislature, made negligence rather than wilful misconduct the basis of recovery.
It is no answer, as stated in the majority opinion, to point to the instructions which told the jury that it was insufficient to show mere negligence or even gross negligence on the part of appellant and that the verdict should be in appellant’s favor unless it appeared that she was guilty of wilful misconduct. These instructions, when considered with the other instructions given, simply made confusion worse confounded. The jury was not guided by any correct definition of wilful misconduct, but, on the contrary, the jury was told in effect in several instructions that acts which in law constitute mere negligence were sufficient to show wilful misconduct and the jury was further specifically told that it was not necessary for respondents to “make any further showing of willful misconduct to be entitled to recover”.
Certain authorities are cited in the majority opinion on the subject of change of theory on appeal. I do not believe that these authorities are in point. In each of the eases cited the theory repudiated by appellant on appeal was the theory adopted and acquiesced in by both parties in the trial court. In the present case appellant did not adopt or acquiesce in the theory of respondents in the trial court, but, on the contrary, appellant strenuously argued against respondents’ theory throughout the trial. The mere fact that in the trial court appellant adopted a theory in line with the views expressed in the minority opinion in Walker v. Bacon, supra, which theory was more favorable to appellant than any theory which the rules laid down in the above-mentioned authorities would permit, should not be held to preclude appellant from adopting and urging the definition of wilful misconduct which has since been settled by said authorities.
[319]Section 4% of article VI of the Constitution is also cited in support of the conclusion reached in the majority opinion, but I do not believe that said section can properly be applied to a ease where the evidence is highly conflicting, where the instructions are irreconcilable and where it appears probable that the judgment resulted from the giving of the erroneous instructions. (Starr v. Los Angeles Ry. Corp., 187 Cal. 270 [201 Pac. 599] ; Hesler v. California Hospital Co., 178 Cal. 764 [174 Pac. 654]; White v. Davis, 103 Cal. App. 531 [284 Pac. 1086]; Zolkoske v. United States Farm & Land Co., 72 Cal. App. 63 [236 Pac. 344] ; Galloway v. United Railroads, 69 Cal. App. 770 [232 Pac. 491]; Alcamisi v. Market Street Ry. Co., 67 Cal. App. 710 [228 Pac. 410].)
In my opinion the judgment should be reversed.
A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 25, 1934.
Preston, J., dissented.