SPENCE, J., Concurring, I concur in the judgment, but it must be conceded that this is one of the difficult, borderline cases arising under our amended guest law which limits recovery to cases of wilful misconduct and intoxication. (California Vehicle Act, sec. 141%, as amended by Stats. 1931, chap. 812.) The meaning of the term “wilful misconduct” as employed in said section has been frequently discussed in the recent decisions. (Meek v. Fowler, (Cal. App.) [35 Pac. (2d) 410] ; Horning v. Gerlach, 139 Cal. App. 470 [34 Pac. (2d) 504] ; Manica v. Smith, 138 Cal. App. 695 [33 Pac. (2d) 418] ; Gibson v. Easley, 138 Cal. App. 303 [32 Pac. (2d) 983]; Norton v. Puter, 138 Cal. App. 253 [32 Pac. (2d) 172] ; Olson v. Gay, 135 Cal. App. 726 [27 Pac. (2d) 922] ; Forsman v. Colton, 136 Cal. App. 97 [28 Pac. (2d) 429]; Turner v. Standard Oil Co., 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].) It appears, however, that the language in said decisions is not entirely harmonious.
Two main problems were presented to the courts under said section. The first was to arrive at a satisfactory definition of the term “wilful misconduct” as used therein. The second was to apply such definition to the facts and to determine whether the evidence was sufficient to sustain a finding of wilful misconduct as opposed to mere negligence or even gross negligence. Neither problem was free from difficulty.
[696]In my opinion the most satisfactory definition of the term “wilful misconduct” is to he found in Turner v. Standard Oil Co., 134 Cal. App. 622 [25 Pac. (2d) 988]. It is there said at page 626: "Wilful 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 under circumstances disclosing knowledge, express or to be implied, that an injury to a guest will be a probable result.” Substantially similar definitions are to be found in the other decisions mentioned, but slight variations in phraseology have led to some confusion. If such confusion continues to exist, it will no doubt result in the nullification of the legislative attempt to confine recovery to cases of wilful misconduct and to deny recovery in cases involving negligence or gross negligence.
It has been frequently said that wilful misconduct is something different from and greater than either negligence or gross negligence and the opinions in the above-mentioned cases discuss the relationship between negligence and wilful misconduct. Broadly speaking, it may be entirely correct to say that all wilful misconduct falls within the definition of negligence, for the doing of an act which constitutes wilful misconduct is likewise the doing of an act which a man of ordinary prudence would not do under the circumstances. It does not follow, however, that all negligence constitutes wilful misconduct. It is not an essential element of negligence that there be any intent to do the act or make the omission. It is sufficient if the act be done either intentionally or thoughtlessly. Neither is it essential that the act be done or the omission be made with knowledge that injury will be the probable result thereof. On the other hand, both the element of intent and the element of knowledge of the probability of resulting injury as set forth in the foregoing definition must be present in order to constitute wilful misconduct. In my opinion the definition of wilful misconduct as found in Turner v. Standard Oil Co., supra, and above set forth, is as clear, concise and accurate as it is possible to make it. In the light of the legislative history, said definition seems to carry out the purpose which the legislature had in mind. I believe that said definition should be accepted and should, without confusing [697]amplification, be strictly adhered to in order that the law on this subject may be treated as definitely settled.
In order to test the sufficiency of the evidence in any given case involving a charge of wilful misconduct it must be borne in mind that it is seldom possible to obtain direct evidence of the necessary intent and knowledge except through the testimony of the defendant himself. If the facts warrant it, however, such intent and knowledge may be inferred from the surrounding circumstances. (Olson v. Gay, supra; Walker v. Bacon, supra; Norton v. Puter, supra.) It is impossible to lay down any general rules in this regard but each ease must stand upon its own facts. In certain aggravated eases, the necessary intent and knowledge- may be readily inferred from the surrounding circumstances while in others the question of the sufficiency of the evidence to support such inference presents a more serious problem. It may be noted that such intent and knowledge may not be inferred from the facts in every case showing an act or omission constituting negligence for, if this were true, any set of facts sufficient to sustain a finding of negligence would likewise be sufficient to sustain a finding of wilful misconduct.
Coming to a consideration of the present case, appellant Mabie’s attack is based upon the alleged insufficiency of the complaint and the alleged insufficiency of the evidence. Said appellant does not challenge the instructions defining wilful misconduct as the only instructions given on this subject were those proposed by said appellant and all of his proposed instructions were given by the court. It is therefore unnecessary to discuss said instructions, but it may be stated that while said instructions defining wilful misconduct were not confined to the definition above set forth, they were substantially correct.
Disregarding conflicts, there was evidence in this case to show that despite the admonition of his guests, appellant Mabie disregarded the stop sign, proceeded into the intersection at a speed of approximately twenty-five miles per hour and then speeded up his car in an effort to beat the two oncoming cars which were traveling along the highway. Conceding the case to be a close one, I believe that the jury could properly infer from the evidence presented that there was the requisite intent and that there was the [698]requisite knowledge of probability of injury to his guests to constitute wilful misconduct. It therefore follows that there is no merit in appellant’s contention concerning the insufficiency of the evidence.
The complaint herein is not to be commended, but it should be stated that it was drawn and thereafter approved by the trial court as amended before the opinions had been handed down in the recent cases defining wilful misconduct. An obvious attempt was made in said complaint to plead wilful misconduct and appellant Mabie was not misled. If it be assumed for the purpose of argument that it was insufficient in its allegations of wilful misconduct, nevertheless a reversal should not be ordered under the circumstances as the evidence was sufficient to show wilful misconduct and the jury impliedly found under proper instructions that said appellant was chargeable therewith. (Const., art. VI, sec. 4½; Baker v. Miller, 190 Cal. 263 [212 Pac. 11]; Bonney v. Petty, 125 Cal. App. 527 [13 Pac. (2d) 969]; Nichols v. Smith, 136 Cal. App. 272 [28 Pac. (2d) 693].)
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 November 15, 1934.
Preston, J., Langdon, J., and Thompson, J., voted for a hearing.