Brown v. Connolly

• Decision Date: 08 February 1965
• Citation: 398 P.2d 596,62 Cal.2d 391,42 Cal.Rptr. 324
• Court: California Supreme Court
• Parties: , 398 P.2d 596, 11 A.L.R.3d 1348 William A. BROWN, Jr., et al., Plaintiffs and Appellants, v. Gregory Peter CONNOLLY et al., Defendants and Respondents. L. A. 28134

Page 324

42 Cal.Rptr. 324

62 Cal.2d 391, 398 P.2d 596, 11 A.L.R.3d 1348

William A. BROWN, Jr., et al., Plaintiffs and Appellants, v. Gregory Peter CONNOLLY et al., Defendants and Respondents.

L. A. 28134.

Supreme Court of California

Feb. 8, 1965.

Beilenson, Meyer, Rosenfeld & Susman, Peter R. Cohen, Sidney M. Wolinsky and Allen E. Susman, Beverly Hills, for plaintiffs and appellants.

Clausen & Gilliland, Richard M. Gilliland and Henry E. Kappler, Los Angeles, for defendants and respondents.

MOSK, Justice.

Victor Brown, plaintiff and appellant, is a minor child ¹ who while riding his bicycle was struck by a car driven by Gregory Peter Connolly, defendant and respondent. The accident occurred in May 1957 when plaintiff was six years old. Two trials have been held in this case. The first resulted in a judgment for defendant, but it was reversed on appeal on the ground of incorrect instructions. (Brown v. Connolly (1962) 206 Cal.App.2d 582, 24 Cal.Rptr. 57.) The second trial also resulted in a judgment for defendant.

Similarly, defendant driver is treated as the sole defendant and respondent.

This appeal is concerned with possible contributory negligence of the minor plaintiff and his failure to testify due to an alleged loss of memory resulting from the accident. Under ordinary circumstances if a party cannot testify because of amnesia induced by injuries suffered in the accident involved in the litigation, he is entitled to a presumption that he acted with due care. (Scott v. Burke (1952) 39 Cal.2d 388, 247 P.2d 313; Powley v. Appleby (1957) 155 Cal.App.2d 727, 318 P.2d 712; De Yo v. Umina (1953) 121 Cal.App.2d 505, 263 P.2d 623.) This presumption heretofore has arisen either where the party testified as to his own loss of memory (see Scott v. Burke, supra) or was physically as well as mentally unable to testify (see Larsen v. Atchison, T. & S. F. Ry. Co. (1959) 176 Cal.App.2d 21, 1 Cal.Rptr. 36.) Plaintiff here did not take the stand, even though physically able, for reasons that will appear later. Instead, he attempted to establish the fact of his amnesia through the testimony of a psychiatrist. The court sustained an objection to the psychiatrist's testimony and ultimately refused to give a jury instruction on the presumption of due care as requested by plaintiff. Plaintiff further requested an instruction that he was entitled to a presumption of due care solely by reason of his minority. That instruction was also refused.

We first consider whether a minor is entitled to a presumption of due care solely by virtue of his minority.

In asserting the affirmative of that proposition, plaintiff relies upon the cases of Van Der Most v. Workman (1951) 107 Cal.App.2d 274, 236 P.2d 842; McKay v. Hedger (1934) 139 Cal.App. 266, 34 P.2d 221, and Barrett v. Harman (1931) 115 Cal.App. 283, 1 P.2d 458. While these cases all involved a minor plaintiff and a defense of contributory negligence and revolved around section 1963, subdivision 4, of the Code of Civil Procedure which provides for a disputable presumption 'That a person takes ordinary care of his own concerns,' they are not helpful authority to us here. Unquestionably the code section applies to minors as well as to adults. A debatable advantage is afforded children of tender years in that their standard of care is to be tested against other children of the same age and not against adults, but the presumption of due care remains disputable and may be controverted by other evidence.

There is no convincing authority in California or in any jurisdiction holding that a minor is entitled to a presumption of due care solely by virtue of age. The thrust of the discussion in most foreign cases tends, in fact, to indicate an attitude that young children generally do not act in due regard for their own safety. ² Yet courts have not let this consideration result in more stringent standards of care for children. The imposition of liability for contributory negligence of children is not avoided by means of a due care presumption; it is determined by a bifurcated test which requires a finding that the particular child had the capacity to act negligently and then tests the child's conduct by the standards of children of like age and maturity. This methodology protects children from unreasonably lofty liability standards while holding them liable when the facts justify it, and avoids the unsupportable conclusion that young children generally act with due regard for their own safety.

The particular means of application vary from state to state. The California rule is similar to the general pattern while avoiding the arbitrary chronological age limits used in many states. In California the age of capacity is a factual question to be determined by the mentality and maturity of the particular child. The standard of care applied to children found to have capacity for negligent acts is that of children of like age, mental capacity, and discretion. (Cahill v. E. B. & A. L. Stone Co. (1914) 167 Cal. 126, 138 P. 712; Todd v. Orcutt (1919) 42 Cal.App. 687, 183 P. 963; and Barrett v. Harman (1931) supra, 115 Cal.App. 283, 1 P.2d 458.)

The California rule appears to be reasonable and workable. The presumption of due care requested by plaintiff in the instant case is available to a child charged with contributory negligence under the same circumstances as apply to adults, but not because he is a child. (Van Der Most v. Workman (1951) 107 Cal.App.2d 274, 236 P.2d 842, and Barrett v. Harman (1931) supra, 115 Cal.App. 283, 1 P.2d 458.) There appears to be no necessity to create a new application of the presumption of due care solely because of the minority of the individual, since present rules protect against charging minors with a standard of care they cannot meet. We hold, therefore, that no presumption of due care arose solely by virtue of the plaintiff's minority.

This, then, brings us to the problem of amnesia.

The presumption of section 1963, subdivision 4, has been limited to certain types of situations. The basic rule is that once a person takes the stand to explain his conduct immediately prior to or at the time in question, he is no longer entitled to the presumption. (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 221, 331 P.2d 617.) The two areas in which the presumption is now allowed are actions for wrongful death (Anthony v. Hobbie (1945) 25 Cal.2d 814, 155 P.2d 826; Westberg v. Willde (1939) 14 Cal.2d 360, 94 P.2d 590; McBaine, Cal. Evidence Manual, sec. 1291, pp. 472-475; Witkin, Cal. Evidence, secs. 65-67, pp. 84- 86) and those cases where by reason of brain injury the party suffers from retrograde amnesia and cannot remember and testify concerning his conduct at and immediately before the accident (Scott v. Burke (1952) supra, 39 Cal.2d 388, 247 P.2d 313; Kumelauskas v. Cozzi (1959) 173 Cal.App.2d 541, 343 P.2d 605; McBaine, supra, Cal. Evidence Manual; Witkin, supra, Cal. Evidence).

A requirement for invocation of the presumption in amnesia cases is that the loss of memory was induced by brain injury suffered as a result of the accident in question. (Kumelauskas v. Cozzi (1959) supra, 173 Cal.App.2d 541, 544, 343 P.2d 605, and cases cited.) It has further been held that the amnesia must be genuine and that this is a question for the trier of fact to determine. (Scott v. Burke (1952) supra, 39 Cal.2d at p. 393, 247 P.2d 313; Hensley v. Harris (1957) 151 Cal.App.2d 821, 825, 312 P.2d 414.)

Plaintiff appears to have met the foregoing requirements, and would unquestionably have been entitled to the benefits of the presumption, except for one complicating factor: he was not called to the stand to testify as to his own loss of memory. Plaintiff offered to prove his amnesia through the testimony of a psychiatrist who had examined him. The proposed testimony of the medical doctor was not permitted by the court upon objection of defendant. The court insisted that before an expert witness could testify as to his opinion about the loss of memory, a proper foundation must be laid for the expert testimony, and that the foundation would best be provided by the testimony of the plaintiff unless he was physically unable to take the stand. Since the plaintiff was physically able to take the stand, the court would not permit the expert opinion testimony.

Plaintiff has analogized his plight to situations in which medical testimony was introduced to establish that a party's physical condition made it impossible or extremely hazardous for him to testify. (Larsen v. Atchison, T. & S. F. Ry. Co. (1959) supra, 176 Cal.App.2d 21, 1 Cal.Rptr. 36; Hughes v. City and County of San Francisco (1958) 158 Cal.App.2d 419, 322 P.2d 623; Ray v. Henderson (1963) 212 Cal.App.2d 192, 27 Cal.Rptr. 847.) Plaintiff contends that he suffered a mental disability equivalent to a physical disability which would excuse him.

All the cases relied upon by plaintiff involve factual situations in which the party not testifying was either mentally or physically so disabled as to prevent his appearance on the stand. No contention has been made that plaintiff is physically unable to testify. His body could have been produced. He does claim that his mental disability is one step removed from the usual amnesia, that on certain occasions he will say he cannot remember anything about the accident, but that on other occasions he will relate a version of the accident. His versions of the accident are seldom the same and are allegedly the product of fantasy. Thus, if called to the stand, plaintiff may or may not testify as to loss of memory, or he may purport to relate a version of the accident. In the latter circumstance his counsel would neither be able to vouch for plaintiff's testimony, nor could he demonstrate to the jury how the plaintiff's tale differs from time to time without in effect impeaching his own witness. As an escape from this dilemma the testimony of the psychiatrist was offered....