Buckner v. Vetterick

• Decision Date: 07 April 1954
• Citation: 124 Cal.App.2d 417,269 P.2d 67
• Court: California Court of Appeals Court of Appeals
• Parties: BUCKNER et al. v. VETTERICK. Civ. 20104.

Page 67

269 P.2d 67

124 Cal.App.2d 417

BUCKNER et al. v. VETTERICK.

Civ. 20104.

District Court of Appeal, Second District, Division 2, California.

April 7, 1954.

Everett F. Beesley, Everett H. Mills, Los Angeles, for appellants.

Lynch & Reilly, Los Angeles, for respondent.

FOX, Justice.

Plaintiffs, who are 15 months and 26 months old, brought this action by their guardian ad litem to recover damages for personal injuries sustained in a collision between a Ford car in which they were riding and a truck. The Ford belonged to the defendant but was being driven with his consent by Mrs. Vetterick, who was killed in the accident. The mother of plaintiffs was also injured. The evidence indicates that Mrs. Vetterick was negligent in that she failed to make a boulevard stop. The complaint is based upon simple negligence, and properly so, for there is no suggestion in the evidence that the driver of the car was guilty of either wilful misconduct or intoxication.

Mrs. Vetterick and Mrs. Buckner, mother of the plaintiffs, were sisters. They had lunch at the Buckner home and then set out to visit an antique dealer in Whittier to inquire about prices of certain antique items they possessed. Mrs. Buckner accepted the invitation of her sister to accompany her and took along her two small children, the plaintiffs herein. The accident occurred on the way home after they had visited the antique dealer. Mrs. Buckner paid nothing for the ride.

The court granted a motion for a nonsuit. Plaintiffs appeal from the ensuing judgment.

The nonsuit was granted upon the theory that since the mother was a guest her decision to bring her small children along gave them the same status, viz., that of guests; hence there was no liability since only simple negligence was either alleged or proved.

Plaintiffs challenge the correctness of this ruling on the theory that the children were incompetent to 'accept' a ride in an automobile and therefore SECTION 403 OF THE VEHICLE CODE¹ is inapplicable. The section provides, in effect, that a guest who accepts a ride without giving compensation for such ride has no right of action for damages for injuries resulting from the simple negligence of the driver. The trial court's position is correct.

Statutes 'must be construed with their intent and purpose in view and the mischief at which they were aimed', Evans v. Selma Union High School Dist., 193 Cal. 54, 57, 222 P. 801, 802, 31 A.L.R. 1121, for these often throw light upon the sense in which the language is used. The situation which section 403 was designed to correct is well known and admirably stated in Crawford v. Foster, 110 Cal.App. 81, at page 87, 293 P. 841, at page 843, where it is said that, 'As the use of automobiles become almost universal, the proverbial ingratitude of the dog that bites the hand that feeds him, found a counterpart in the many cases that arose, where generous drivers, having offered rides to guests, later found themselves defendants in cases that often turned upon close questions of negligence. Undoubtedly, the Legislature, in adopting this act, reflected a certain natural feeling as to the injustice of such a situation. * * * Doubtless, the Legislature intended to change the rule heretofore adopted in this state, that a mere invited guest could recover for simple negligence * * *.' Thus, under the legislatively declared public policy of this state, the mother of plaintiffs, who was injured in the accident, cannot recover from the defendant. As their mother she had the responsibility of their care and direction. It was her decision that determined whether they should go on this trip. In accepting the ride for herself and deciding to take the children along she also accepted for them. Otherwise, we would have the anomalous situation of the mother who made the decision being a guest and her infant children not being guests and their status with respect to the operator of the car being different from that of their mother, with the result that during the trip the driver would owe a different degree of car to the children from that which was owed to their mother. Such a differentiation is both illogical and out of harmony with the purpose of section 403 of the Vehicle Code. It would leave a segment of 'the mischief' at which the statute was aimed uncorrected. It would therefore seem both reasonable and logical to say that when a parent accepts a ride as a guest of the operator of a motor vehicle and takes along her small children she also accepts the ride for them and they have the same status with relation to the driver on such ride that the parent has. Therefore, since the mother was a guest, the children were guests and none of them could recover as only simple negligence was involved.

Many decisions of more importance and involving greater hazard are made by parents for their small children daily. An example is the right of a parent to consent to an operation on his child and the right of the surgeon to rely on that consent. See 70 C.J.S., Physicians and Surgeons, § 48, p. 968. The same principle prevails where an adult child is an incompetent and has no legally appointed guardian. Farber v. Olkon, 40 Cal.2d 503, 509, 254 P.2d 520. Thus a parent may speak and act for his child when the child is legally incapable of acting for itself and others may properly rely on the action of the parent in such circumstances.

Both parties rely on Rocha v. Hulen, 6 Cal.App.2d 245, 44 P.2d 478, 483. While this case is not...