Reuther

I dissent. I would (a) reverse the orders granting defendant a new trial and denying defendant’s motion for judgment notwithstanding the verdict and (b) remand the ease to the trial court with instructions to enter judgment for defendant notwithstanding the verdict, for the reasons expressed by Mr. Justice Stone in the opinion prepared by him for the District Court of Appeal in Reuther v. Viall (Cal.App.) 40 Cal.Rptr. 694 .

In this personal injury action plaintiffs, Mr. and Mrs. Reuther and their two minor children by their guardian ad litem, recovered judgment on a special jury verdict finding wilful misconduct by defendant automobile driver, Mary L. Viall. Plaintiffs appeal from an order granting defendant a new trial, and defendant appeals from an order denying her motion for judgment notwithstanding the verdict. (See Code Civ. Proc., § 629.) Upon the evidence adduced the issue of wilful misconduct is one of fact rather than of law. There was a sufficient showing from which the jury reasonably could have arrived at the conclusion that defendant’s actions constituted wilful misconduct; therefore, the trial court’s order denying defendant’s motion for judgment notwithstanding the verdict was proper. On the other hand, the nature of the evidence was such that reasonable men could differ thereon, a judgment that defendant was merely negligent would likewise find support, and therefore the judge’s order granting defendant’s motion for a new trial is binding on this court.

The Reuthers and the Vialls were neighbors and friends. After several hours of boating on a July day the adult *473 members of the…