I concur in the reversal of the judgment pursuant to the error in the instruction on business purpose under the recently announced rule of Bozanich v. Kenney, 3 Cal.3d 567 [91 Cal.Rptr. 286, 477 P.2d 142]. However, I cannot agree that the judgment should be reversed with directions to enter a judgment in favor of plaintiffs on the ground that Seifert was guilty of wilful and wanton misconduct as a matter of law.
In arriving at the nine factors upon which they predicate their legal conclusion that Seifert committed wilful and wanton misconduct,1 the majority has departed from the well established rule of appellate review. Where the evidence, though undisputed or without conflict, reasonably *82permits differing inferences, this court must accept those inferences supportive of the jury’s verdict. The fact that inferences other than those which have been drawn by a jury may appear to an appellate tribunal to be more reasonable does not afford sufficient justification for disturbing the judgment on appeal (Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598, 602 [86 P.2d 829]). I agree that the evidence here would have abundantly supported a jury’s finding of wilful and wanton misconduct but no substantial authority has been cited to support such a determination as a matter of law at the appellate level. The jury, having heard all of the evidence, conflicting and otherwise, apparently rejected the conclusions and inferences upon which the majority opinion relies.
Wilful misconduct is defined as, first: the intentional doing of something with the knowledge that serious injury is a probable, as distinguished from a possible result; and, second, the intentional doing of an act with a wanton and reckless disregard of its possible result (Meek v. Fowler, 3 Cal.2d 420, 426 [45 P.2d 194]; Morrison v. Townley, 269 Cal.App.2d 863 [75 Cal.Rptr. 274]). Here, except for Seifert’s lack of experience with the Apache and in night flying, and except for his lack of instrument rating, there are conflicting inferences to be drawn as to each of the other factors cited. For instance, as to the weather, one of the experts testified that given one of the possible times of takeoff and the then existing weather conditions, the plane could have made it without the use of instrument flying. Thus, the jury could have found that Seifert took off for Palo Alto pursuant to the visual flight conditions for which he was fully qualified and under which he could legally take off. Despite his earlier cold, Seifert felt well enough on the day in question to put in a full day at work, meet with the Mittelmans and proceed with the plans made for dinner. The presence of the pills in Seifert’s desk drawer do not establish the fact that he took them on the fatal day. Although Seifert was served two drinks, a waitress testified that he consumed only between V3 and V2. of one drink. As to the failure to wear glasses, although Seifert was not wearing his glasses when the party left the inn, he could have put them on before the plane took off. The fact that a pair of his glasses were found in a case at the scene of the accident is not determinative, as he usually carried several pairs. After all, Mittelman was known to be wearing glasses at the party and yet his glasses were not found at the scene of the accident. There is no evidence that Seifert had a suicidal tendency and was bent on destroying himself, his wife, and his most important clients. I cannot find sufficient uncontroverted evidence to support a finding of wilful and wanton misconduct at the appellate level.
We must keep in mind that Seifert was licensed to fly his plane. Furthermore, despite his lack of experience in flying the Apache, he had *83completed several flights, including some instrument flying. The jury, rather than inferring wilful and wanton misconduct on Seifert’s part, may well have limited itself to the conclusion that FAA standards for relicensing former military pilots and controlling small airports are not sufficiently stringent.
In my view, the proper disposition of the case would be to reverse • and order retrial of the liability issue under proper instructions as to business purpose and the applicable federal standard of ordinary care. I see merit in plaintiffs’ argument that under the supremacy clause of the United States Constitution, the conflict between the standard of care required by the California statute and the higher standard set forth in the federal regulations must be resolved in favor of the federal law. Plaintiffs properly rely on Blevens v. Sfetku, 259 Cal.App.2d 527 [66 Cal.Rptr. 486], which held the California motorboat guest statute unconstitutional on the basis of such a conflict. There is a compelling convincing analogy between the federal government’s control and regulation of maritime and motorboat safety and aviation and aircraft safety. There is an impressive line of authority holding that a regulatory statute containing penalties for its violation creates a civil right of action among the members of the class that the statute seeks to protect. (Reitmeister V. Reitmeister, 162 F.2d 691; Wyandotte Co. v. United States, 389 U.S. 191 [19 L.Ed.2d 407, 88 S.Ct. 379]; Town of East Haven v. Eastern Airlines, Inc., 282 F.Supp. 507. For a discussion of the principle involved see City & County of San Francisco v. Western Air Lines, Inc., 204 Cal.App.2d 105, 121-125 [22 Cal.Rptr. 216].) The argument that there can be no federal right of action for wrongful death in the absence of statute was recently negated by the United States Supreme Court in Moragne v. States Marine Lines, 398 U.S. 375 [26 L.Ed.2d 339, 90 S.Ct. 1772] which held that there was a nonstatutory cause of action in federal maritime law for wrongful death. It is my view that plaintiffs here have a federal cause of action and that the state’s limitation of their right of recovery to situations involving intoxication and wilful misconduct violates the United States supremacy clause as it is inconsistent with the higher standard of care of ordinary negligence set forth in federal aviation regulation 91.9 and imposed for the protection of the life and property of all persons including guests. (Cf. Roosevelt Field v. Town of North Hempstead, 88 F.Supp. 177.)
The petition for a rehearing was denied May 21, 1971. Taylor, J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied June 23, 1971.
(1) Seifert, a beginning pilot.
(2) Seifert not qualified for instrument flight.
(3) Any attempt to cross mountains under existing conditions extremely hazardous.
(4) Failure to note weather check.
(5 ) Takeoff flight pattern.
(6) Absence of required takeoffs and landings at night before carrying passengers.
(7) Physical condition and fatigue.
(8) Use of alcoholic beverage.
(9) Failure to wear glasses.