Summary
In Uddo v. Parker (Cal.App.) 31 Cal.Rptr. 745, the court, relying on Lehmuth, also held it not error to give BAJI 147 where the contributory negligence of a minor operating a motor vehicle was involved but the appeal was dismissed after the Supreme Court had granted a hearing.
Summary of this case from Neudeck v. BranstenOpinion
Rehearing Denied July 8, 1963.
Hearing Granted Aug. 14, 1963.
Appeal Dismissed by Stipulation March 24, 1964.
Assigned by Chairman of the Judicial Council.
Banyard, Portigal & Hayden, Santa Ana, for defendant and appellant Percy Edwin Parker.
Rollin E. Woodbury and Chase, Rotchford, Downen & Drukker, Los Angeles, for defendant and appellant Southern California Edison Co.
Rimel & Johnston and Roy S. Giordano, Santa Ana, for plaintiff and respondent.
GRIFFIN, Presiding Justice.
Plaintiff-respondent Joseph Salvador Uddo, a minor, through his guardian ad litem, Salvador J. Uddo, sued defendants-appellants Percy Edwin Parker and Southern California Edison Company for damages for personal injuries, consequential and property damages alleged to have been proximately caused by the negligence of defendant Parker while operating an automobile as the agent and with the permission of the owner, defendant Southern California Edison Company. Defendants denied that they were negligent, denied the allegations of damages in plaintiff's complaint, and alleged the affirmative defense of contributory negligence. After trial by jury, a verdict was returned for the defendants The trial court stated that the law is uncertain in California as to whether minors who are licensed to operate motor vehicles are held, when doing so, to the same standard of care as adults. In granting the motion for new trial on this limited ground, the court invited defendants to appeal the ruling so that a clear-cut appellate decision might be obtained on the point. Defendants now appeal from the order granting plaintiff a new trial solely on this ground. The appellate court will review the actions of the trial court only on these questions of law. There appear to be no matters of mere discretion of the trial court involved.
FACTS
On November 17, 1959, after dark, defendant Parker was driving a Ford automobile owned by the Southern California Edison Company in an easterly direction on Raymond Avenue in Fullerton. He intended to make a left turn into the driveway of a church to pick up his boy at a Boy Scout meeting. He stopped before commencing his turn and allowed a westbound automobile to pass. He had his electrical signals turned on indicating his intention to turn left. After the westbound automobile had passed, he started to make the left turn. As he did so, he saw a 'silhouette' of something and immediately stopped again. After he had stopped, the front of defendant's automobile was struck by a motorcycle, or motor scooter, described as a 1957 Mustang, weighing about 245 pounds, with a 9 1/2 horse power motor and capable of speeds of from 60 to 65 miles per hour. It was being operated westbound by plaintiff. When stopped the second time, the left front wheel of defendant's automobile was three to four feet north of the center of the street. There was evidence that there was no illumination on the motorcycle after the impact, but there was testimony that others did see the light on the motorcycle before the impact. Plaintiff did not remember much about the facts, but stated that his lights were on a short time prior thereto because he was trying to sell the motorcycle to another boy and they were on at the time.
Plaintiff was born December 8, 1942. He was 21 days short of being 17 years old at the time of the accident. He attended high school and was the registered and legal owner of the motorcycle. He had obtained a vehicle operator's license in 1958 and before that he had a learner's permit. According to the testimony of the plaintiff's father, he was a qualified driver. Plaintiff drove his motorcycle practically every day before the accident. He also drove his father's automobile. He had driven his motorcycle for some period of time and in various places in the City of Fullerton on the date of the accident, both before and after dark.
The court gave the plaintiff's BAJI Instruction No. 102 as to the definition of ordinary care, BAJI No. 102A to the effect that the amount of caution required of a person in the exercise of ordinary care depends upon the danger which is apparent to him or should be apparent to a reasonably prudent person in the particular situation and circumstances involved, BAJI No. 103C pertaining to contributory negligence, and BAJI No. 151 as to the duty of the driver to exercise ordinary care. The court refused plaintiff's proposed instruction, BAJI No. 147, to the effect that a child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience; that the rule applies even when a child is charged with having violated a statute or ordinance or the evidence shows It therefore appears that the questions presented are: (1) Is the standard of conduct applicable to children in negligence actions to be applied where the child is charged with contributory negligence in the operation of a motor vehicle? (2) Should instructions relating to presumption of negligence and contributory negligence be themselves separately qualified as to the degree of care required of a minor plaintiff vehicle operator where his age is 16 years and 11 months?
The trial court properly stated that the law in California is not clear on the subject. Elliot v. Jensen, 187 Cal.App.2d 389, 394, 9 Cal.Rptr. 642, 646, involved two drivers of cars, one aged 55 and the other aged 18. The court said:
'The only other point, somewhat novel in nature, is that the trial court failed to consider the great disparity in the ages of the two drivers--at the time of the accident appellant was 18 and respondent driver was 55. The cases cited by appellant * * * do not support any such rule of law. The same duty is imposed by law on all licensed drivers and there is no distinction made as to ages.'
On the other hand, Gunter v. Claggett, 65 Cal.App.2d 636, 151 P.2d 271, which is in direct conflict with the holding in Elliot v. Jensen, supra, involved a collision between a motorcycle driven by a minor 18 years of age and an automobile driven by a defendant, an adult. The conditions surrounding the accident were quite similar to those in the instant case. There, appellants objected to an instruction to the effect that the minor would be guilty of contributory negligence if he did something which an ordinarily prudent person of the same age and experience would not have done. Appellants urged that this instruction set forth the duty of care required of children, and contended that the jury should have been informed that the standard of conduct to which the minor should have conformed was that of a reasonable man. The court held that appellant's point was without merit and relied upon Merrifeld v. Maryland, etc., Co., 143 Cal. 54, 76 P. 710, which did not involve an automobile accident. No hearing by the Supreme Court was sought in either case. It is defendant's argument that the Merrifeld case correctly stated the general rule, but that their position here is that an exception to the general rule arises when a minor takes it upon himself to operate a motor vehicle on the public highways of this state. This claim is supported by cases from many other jurisdictions. In Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 863, the Supreme Court of Minnesota, when confronted with the same problem, held:
'To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults. While minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others. A person observing children at play with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood activities may anticipate conduct that does not reach an adult standard of care or prudence. However, one cannot know whether the operator of an approaching automobile, Recognition of the correctness and the necessity for this appellant's argument is found in the Restatement of Torts, Tentative Draft No. 4, section 238A, comment c, approved in 1959 by the American Law Institute, which was cited with approval by Minnesota in Dellwo v. Pearson, supra, 259 Minn. 452, 107 N.W.2d 859. Referring to the Restatement of the standard of care for children, it says:
'An exception to the rule stated in this section may arise where the child engages in an activity which is normally undertaken only by adults, and for which adult qualifications are required. As in the case of one entering upon a professional activity which requires special skill * * *, he may be held to the standard of adult skill, knowledge and competence, and no allowance may be made for his immaturity. Thus, for example, if a boy of 14 were to attempt to fly an airplane, his age and experience would not excuse him from liability for flying it in a negligent manner. The same may be true where the child drives an automobile. In this connection licensing statutes, and the examination given to drivers, may be important in determining the qualifications required; but even if the child succeeds in obtaining a license he may thereafter be required to meet in the standard established primarily for adults.'
This section was also cited with approval in South Dakota, in Wittmeier v. Post, 78 S.D. 520, 105 N.W.2d 65. See also Karr v. McNeil, 92 Ohio App. 458, 110 N.E.2d 714, and Wilson v. Shumate (Mo.) 296 S.W.2d 72, where it was held that an instruction that a 17 or 18-year-old plaintiff driver, allegedly contributorily negligent, should be judged on the basis of her age, intelligence and discretion, was reversible error in the light of a Missouri statute providing that every person operating a motor vehicle on the highways of Missouri was bound to drive the same in a careful and prudent manner, and to exercise the highest degree of care. To the same effect are Sheetz v. Welch, 89 Ga.App. 749, 81 S.E.2d 319; Biddle v. Mazzocco, 204 Or. 547, 284 P.2d 364; Simmons v. Holm, 229 Or. 373, 367 P.2d 368; Haller v. Gross, 135 Colo. 218, 309 P.2d 598; Hill Transp. Co. v. Everett, 1 Civ., 145 F.2d 746; Nelson v. Carriere (La.App.) 68 So.2d 801.
Appellants point to three new decisions from other jurisdictions supporting appellants' position, i. e., Carano v. Cardina, 115 Ohio App. 30, 184 N.E.2d 430, where a 17-year-old defendant was charged with negligence in the operation of his motor vehicle on an Ohio roadway. After a verdict for the defendant, the plaintiff appealed. He argued that an instruction stating that the degree of care required of defendant was that which ordinarily careful and cautious 17-year-old drivers would use, was error. The appellate court agreed and reversed, citing Karr v. McNeil, supra, 92 Ohio App. 458, 110 N.E.2d 714, and Dellwo v. Pearson, supra, 259 Minn. 452, 107 N.W.2d 859. Nielsen v. Brown (Or.) 374 P.2d 896, involved a 16-year-old licensed operator. The Oregon Supreme Court found reversible error in the admission of certain evidence. Error was also alleged in refusing to instruct the jury that since she was only 16 at the time of the accident she was not held to or required to exercise the same degree of care and caution and foresight as would be required of an adult. The court engaged in a broad discussion of the question, citing many authorities from other jurisdictions, and held that the instruction would be improper on the retrial of the case. Betzold v. Erickson, 35 Ill.App.2d 203, 182 N.E.2d 342, followed the same rule.
There are cases in other jurisdictions which are directly contrary to this holding, Charbonneau v. MacRury,
Smith v. Bailey, Harvey v. Cole,In Lehmuth v. Long Beach Unified School Dist., 53 Cal.2d 544, 2 Cal.Rptr. 279, 348 P.2d 887, our Supreme Court had before it an action against a school district and a student, where the student operator (a minor) was driving an automobile towing a sound trailer without a safety chain and the sound truck broke loose and injured some pedestrians. It held that the court did not err in instructing the jury that the care required of any person under the age of 21 years is not to be judged by the standard applicable to an adult, but by that degree of care which might reasonably have been expected of a child of like age, capacity and experience under the same of similar circumstances, the instruction being directed to the conduct of the student operator, not the conduct of the pedestrians, since there was no claim of contributory negligence, and that a minor's age alone, though it be 18 years, does not as a matter of law establish maturity such as to impose on him or her the standard of care applicable to an adult. The jury returned a verdict against the district, but exonerated the minor driver. The minor had a non-resident driver's license that had expired. The court held that the possession of a driver's license is immaterial, and if an accident occurs, the determination of care of lack of care must be determined from the facts of the accident, citing Strandt v. Cannon, 29 Cal.App.2d 509, 518, 85 P.2d 160.
Defendants agree with plaintiff that the lack of a driver's license is not evidence of the negligence of the operator, but it is their position that the existence of an operator's license and the licensing statutes are important in considering what standard is to be applied in determining negligence or contributory negligence in the operation of a motor vehicle. (Citing Restatement of Torts, Tentative Draft No. 4, section 238A, comment c, supra.)
In a concurring opinion, in the Lehmuth case, Mr. Justice Schauer, stated, on page 557 of 53 Cal.2d, on page 287 of 2 Cal.Rptr., on page 895 of 348 P.2d:
'It is my view, however, that minors who undertake to drive motor vehicles upon the public highways of this state should be subject to the same rules governing operation of such vehicles and to the same liability for breach of such rules, as are adults.'
Nothing was said therein as to appellant's claims that when a minor takes it upon himself to engage in adult activity, and when he must qualify to engage in such an activity by meeting standards applicable to adults and minors alike, he should be held to the adult standard of care.
The holding in this case was followed in Shmatovich v. New Sonoma Creamery, 187 Cal.App.2d 342, 9 Cal.Rptr. 630, where a boy, aged 17, with no driver's license, was driving a car and was killed in a collision with another car. In an action by the mother for the death of her son, it was held that a minor, though approaching the age of majority, is not necessarily held to the same standard of care applicable to an adult, it being for the jury to determine whether a particular minor exercised the care and prudence due from one of his years and experience, and that lack of a driver's license is not evidence of the driver's negligence, and except in special situations it is error to permit proof of absence of a license. The incongruity of the statement of Justice Schauer in the Lehmuth Mosconi v. Ryan,
It might well appear therefore that, notwithstanding the great number of jurisdictions holding to the contrary, the Supreme Court of this state has spoken on the subject and we must be guided thereby.
Order granting new trial affirmed.
BROWN, J., concurs.
CONLEY, Justice. *
I concur reluctantly, and only because I believe that the holding of the Supreme Court in Lehmuth v. Long Beach Unified School Dist., 53 Cal.2d 544, 554-555, 2 Cal.Rptr. 279, 348 P.2d 887, requires it. As an intermediate appellate court, we are, of course, bound by such holding. (Auto Equity Sales Inc. v. Superior Court, 57 Cal.2d 450, 455 20 Cal.Rptr. 321, 369 P.2d 937.)
Were it not for the foregoing reason, I should hold to the contrary. For it seems to me that when a young person is old enough to secure a license to operate an automobile on the highways of the state, he is old enough to be responsible under the same standard of care to which any other driver is held. The Motor Vehicle Act prescribes specific duties as rules of the road for anyone who drives an automobile on the public highways. The Penal Code (§ 26) provides that a child of 14 years of age or over is capable of committing a crime. Breaches of most of the rules of the road contained in the Motor Vehicle Code constitute crimes. It seems anomalous that a young man under 21 years of age who has acquired a license to drive on the public highways and who would be criminally guilty for failure to abide by the rules of the road could nevertheless be found not to be negligent for the breach of those identical rules. The logic of the holding in this case would permit a jury under this instruction to find that although a 20-year-old man ran through a stop sign and drove at 80 miles an hour on the wrong side of the road without lights at night, he could be found not guilty of negligence merely because he had not reached the age of 21.