Howard

This is an appeal from a judgment in favor of the plaintiff based upon a fourth amended complaint charging wilful misconduct on the part of the defendant. Plaintiff, who lived in Visalia with her two sons, Homer C. Howard and Sammie Howard, had gone to Santa Cruz on November 10, 1931. On the evening of that day, the two boys started from Visalia to join their mother at Santa Cruz, it being conceded that Sammie was riding as the guest of his brother in his automobile. It was raining or sprinkling and the pavement was wet. As they reached the outskirts of Visalia, near a point where a paved highway joins the city pavement, Homer, who was driving, saw an automobile approaching which appeared to be in the center of the paved highway. He kept on the highway, thinking the other car would, get over and when he finally saw that car was not getting over, he turned to the right, whereupon his car began to skid, left the pavement and turned over, causing injuries to his brother Sammie, from which he later died.

This action, brought by the mother against the surviving son, was tried by the court without a jury. The court found that the deceased was riding as the guest of his brother on…