Ferreira v. Barham

Decision Date14 October 1964
Citation40 Cal.Rptr. 739,230 Cal.App.2d 128
CourtCalifornia Court of Appeals Court of Appeals
PartiesSonia FERREIRA, etc., et al., Plaintiffs and Appellants, v. Rebecca BARHAM, etc., et al., Defendants and Respondents. Civ. 10833.

P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellants.

Rich, Fuidge, Dawson, Marsh, Tweedy & Morris, Marysville, Pelton, Gunther & Gudmundson, San Francisco, for respondents.

PIERCE, Presiding Justice.

On this appeal from a defendants' judgment of nonsuit the only contention is that California's guest statute (Veh. Code, sec. 17158) is unconstitutional as a denial of due process and of equal protection of the laws. (U.S.Const., 14th Amend.) We disallow the contention.

Plaintiff, Sonia Ferreira, a minor (hereinafter referred to as 'plaintiff'), admittedly riding as a guest of 15-year-oil defendant Rebecca Barham, operator of an automobile, was injured when the automobile left the road, rolling on its side.

The complaint was in three causes of action, the first against the County of Glenn, alleging faulty road maintenance, the second alleging negligent operation of the vehicle by Rebecca, and the third alleging her wilful misconduct. A demurrer to the first cause of action against the county was sustained on the ground that plaintiff had failed to file a claim with the county as required by Government Code, section 53052. Judgment followed which this court affirmed on appeal. (Ferreira v. County of Glenn, 176 Cal.App.2d 751, 1 Cal.Rptr. 585.)

In March 1963 the second and third causes of action were tried. Plaintiff, the only person to testify, related that defendant Rebecca Barham, a 15-year-old girl, had not been drinking, no wilful misconduct was shown, and nonsuit was granted by the court on both causes of action. The appeal, as stated above, concerns only the ruling on the second cause of action where the pleading was limited to the negligence of defendant Rebecca Barham.

The sole contention is that the guest statute violates 'due process' and 'equal protection.' Argument on these grounds is expressed not only in the brief and oral argument made in the case at bench but is supplemented by a comprehensive study of 'the rights of man' in a brief filed in another case, Flournoy v. State of California, 3 Civil No. 10876, pending before this court. The Flournoy case involves the question inter alia of the validity of California's 1963 governmental immunity legislation. (Stats. 1963, ch. 1681; Gov.Code, sec. 810 et seq.) The brief in that case is also made a part of two other cases pending in this court, Hayes v. State of California, 3 Civil No. 10916, and Morgan v. County of Yuba, 3 Civil No. 10636. In all of these cases appellants are represented by the same counsel. The propositions advanced by appellants may be epitomized by a summarization of the conclusion as expressed in the brief in the instant case: That appellants are 'talking about the Rights of Man as protected by the Constitution of the State of California and the Constitution of the United States of America.' That among these is 'the right to be free from the negligent conduct of others. And these rights are protected by the due process and equal protection clauses of the state and federal constitutions,' and appellant asks: 'Why should I not have to be careful to my friend at my right in the front seat of the car I am driving as the law requires me to be to a stranger in a cross-walk?' It is also asked: Should a statute be constitutional 'which provided that automobile drivers shall not be liable for negligence but only for wilful misconduct'?

The question is without nevelty. In California and elsewhere validity has been firmly established against the charges raised not only as regards guest statutes but also of others analogous. The rule applied in these cases is that the Legislature may constitutionally alter, modify or eliminate prospectively common law rules governing private tort liability where it acts reasonably upon the basis, and within the scope, of its regulatory police power. And specifically, the rule is settled that 'wilful misconduct' guest laws ARE a proper exercise of such power. We would, therefore, limit discussion here to the foregoing statement and a citation of authority but for the fact that a more detailed analysis of the same authorities will be pertinent to the more complex questions involved in the above referred to cases before us involving the validity of the 1963 governmental immunity statute. The results of that case study may as well be expressed here insofar as it deals with the limited question at issue in this case.

First of all it may be stated that our California Supreme Court has flatly--and quite recently--asserted the existence of broad legislative powers in the general field of discussion we enter. In 1948 in Modern Barber Colleges v. California Employment Stab. Com., 31 Cal.2d 720, on page 726, 192 P.2d 916, on page 920, it stated, that the Legislature 'has complete power to determine rights of individuals. * * * It may create new rights or provide that rights which have previously existed shall no longer arise, * * *.' And in 1927 it said in Fall River Valley Irrigation Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, at page 67, 259 P. 444, at page 449, 56 A.L.R. 264: 'No question can arise as to the power of the Legislature to modify or abrogate a rule of the common law.' We now turn to cases dealing with the legislative power as regards regulation of tort liability involving the guest-host relationship.

California's original guest law was adopted in 1929. (Stats. 1929, ch. 787, p. 1580.) It added a new section 141 3/4 to the California Vehicle Act by which ordinary negligence was eliminated as a basis for recovery in guest cases, the host's liability being limited to intoxication, wilful misconduct, or gross negligence. In 1931 gross negligence was eliminated, thus restricting liability to intoxication or wilful misconduct. (Stats.1931, ch. 812, p. 1693.) The constitutionality of the amendment was challenged in an action in this court (Forsman v. Colton, 136 Cal.App. 97, 28 P.2d 429) on the charge that it violated the state constitutional provision (art. I, sec. 13) which contains a 'due process' clause. Validity was upheld. Strength of the decision as precedent may be questioned (and has been by appellants) because the decision was based upon two cases, Castro v. Singh, 131 Cal.App. 106, 21 P.2d 169, and Callet v. Alioto, 210 Cal. 65, 290 P. 438, both of which may be said to have assumed validity but neither of which expressly considered the question. (Both held the guest law could not be applied retroactively.)

But in a very recent case, Patton v. La Bree (Dec. 1963), 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398, the California Supreme Court again had the guest law before it. That case involved a 1961 amendment to the law (then and now codified in Veh.Code, sec. 17158). The amendment extended the restrictions of the law by providing 'No person riding in or occupying a vehicle owned by him and driven by another person with his permission * * * has any right of action * * * unless the plaintiff in any such action establishes * * * the intoxication or willful misconduct of the driver.' Answering the contention that the amendment was unconstitution 'in that it makes an arbitrary distinction between owners giving compensation for a ride and other persons, not owners, who give such compensation,' the court stated on page 609, 35 Cal.Rptr. on page 624, 387 P.2d on page 400: (1) that there was a presumption in favor of constitutionality; (2) that wide discretion was vested in the Legislature in making a classification, and the classification will be upheld by the courts unless it is "palpably arbitrary and beyond rational doubt erroneous." It was held the classification was not arbitrary. This holding that the statute with the amendment adding an additionally-favored class is constitutional imports a finding of constitutionality before the addition; at least to the extent of the point covered--'equal protection.'

Justice Peters dissented in the Patton case but in doing so made it clear (on p. 611) that he considered the original classification in the section proper. In so stating, Justice Peters referred to Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221, 65 A.L.R. 939. There the United States Supreme Court upheld the Connecticut guest law. Appellants here contend Silver did not consider the question of violation of 'due process'; that only violation of 'equal protection' was discussed. It is true that the Supreme Court did state its review was limited to the question considered by the Connecticut Supreme Court (equal protection) but it also said on page 122 of 280 U.S., on page 58 of 50 S.Ct., on page 225 of 74 L.Ed, on page 942 of 65 A.L.R.: '* * * We need not, therefore, elaborate the rule that the Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object. [Citations.]' It also held that being aware of the frequency of litigation in which guests sued their drivers, seeking large sums, and of the evils of vexatious litigation, it could not assume that the 'lower standard of care [to] be exacted' when motor vehicle operators carried guests was an improper subject of classification. The constitutionality of our guest law in its general aspect (i. e., as a protection to the unintoxicated unwilful host) was assumed but not discussed by our Supreme Court in Emery v. Emery, 45 Cal.2d 421, 432, 289 P.2d 218, and in Weber v. Pinyan, 9 Cal.2d 226, 229, 70 P.2d 183, 112 A.L.R. 407.

Cases on the constitutionality of automobile guest statutes are collected in an annotation following Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998. The Washington statute limited a...

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