Horning v. Gerlach

MARKS, J. This is an appeal from a judgment rendered in an action to recover damages resulting from injuries received by Mrs. Grace Horning when she fell from an automobile driven by Mrs. Margaret Gerlach and which belonged to both defendants.

Mrs. Horning had been riding in an automobile, a sedan, as the guest of Mrs. Gerlach, for about an hour before the accident, which happened on November 25, 1931. She was sitting on the right side of the front seat nest to the right front door. The automobile was being driven east of Thirtieth Street in National City at a speed of between thirty-five and forty miles an hour. At L Street Mrs. Ger-laeh made a left turn at about the same speed. The right front door opened and Mrs. Horning fell onto the roadway causing the injuries for which damages were recovered.

The accident happened after the effective date of the amendment to section 141% of the California Vehicle Act (Stats. 1931, chap. 812), which eliminated the words “or gross negligence”. The trial was had before the decision of any of the cases hereafter cited in which the courts attempted to define “willful misconduct” as used in the section. If the judgment before us is to be supported it must be because of wilful misconduct on the part of Mrs. Gerlach as there is no intimation of her intoxication.

The catch on the right front door of the automobile had been giving trouble for one or two months prior to the accident. Mrs. Gerlach testified that the door had opened once while she was driving and her husband told her it had given trouble several times while he was driving. It does not appear that it had actually opened more than the once. The lock had two positions where it would catch, and during the period above referred to the door had to be .vigorously slammed shut in order to engage the second catch. If the first catch only were engaged the door would rattle. On [472]the one prior occasion on which this door opened Mrs. Ger-lach had not noticed any rattle. On the day of the accident, after Mrs. Horning had entered the automobile Mrs. Gerlach slammed the door hard and proceeded on her journey. The door had not rattled nor had it been opened during their ride prior to the accident. There is no suggestion in the record that the place of the accident was in a business or residential district or that the intersection was an obstructed one.

An effort to define wilful misconduct as used in section 141% of the California Vehicle Act has been made in the following cases: Howard v. Howard, 132 Cal. App. 124 [22 Pac. (2d) 279], Walker v. Bacon, 132 Cal. App. 625 [23 Pac. (2d) 520], Turner v. Standard Oil Co., 134 Cal. App. 622 [25 Pac. (2d) 988], Olson v. Gay, 135 Cal. App. 726 [27 Pac. (2d) 922], Forsman v. Colton, 136 Cal. App. 97 [28 Pac. (2d) 429], Norton v. Puter, 138 Cal. App. 253 [32 Pac. (2d) 172], Gibson v. Easley, 138 Cal. App. 303 [32 Pac. (2d) 983], and Manica v. Smith, 138 Cal. App. 695 [33 Pac. (2d) 418]. Petitions for hearing by the Supreme Court have been denied in at least two of these cases.