Gillespie

Concurring and Dissenting.—I concur in the opinion of Mr. Justice Schauer insofar as it discusses the theory of wilful misconduct and holds that the evidence is insufficient to support the judgment on that theory. I dissent from the holding that plaintiff was a passenger, rather than a guest, in defendant’s automobile. I would reverse the judgment for the reasons stated by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal in Gillespie v. Rawlings (Cal.App.), 309 P.2d 560 .

Appellant’s petition for a rehearing was denied December 11, 1957.

Defendant appeals from a judgment for plaintiff, pursuant to jury verdict, in an action for personal injuries sustained when plaintiff was riding in an automobile operated by defendant. One count of the complaint alleges that plaintiff was a passenger for consideration, and one count alleges that defendant was guilty of wilful misconduct. De *361 fendant urges that the evidence is insufficient to prove either that plaintiff was a passenger or that defendant was guilty of wilful misconduct. We have concluded that the judgment should be upheld upon the theory that plaintiff was a passenger, but not upon the theory that defendant was guilty of wilful misconduct.

On the day of the accident (Sunday, February 7, 1954) plaintiff was defendant’s employe, but there is no contention that she was acting in the course and scope of her employment on that day. 1 Defendant was a real estate broker in Hermosa Beach. For four months before the accident plaintiff worked for defendant as receptionist and clerk. 2 Defendant’s hus *362 band, although he was licensed as a real estate broker, was not active in the business; defendant was the “boss.” Plaintiff testified that defendant “wanted me to…