Cooper v. Bray

• Decision Date: 16 August 1978
• Citation: 21 Cal.3d 841,148 Cal.Rptr. 148,582 P.2d 604
• Parties: , 582 P.2d 604 Gertrude COOPER, Plaintiff and Appellant, v. Claude Lewis BRAY et al., Defendants and Appellants, Ruth Tashma, Defendant and Respondent. L.A. 30865
• Court: California Supreme Court

Page 148

148 Cal.Rptr. 148

21 Cal.3d 841, 582 P.2d 604

Gertrude COOPER, Plaintiff and Appellant, v. Claude Lewis BRAY et al., Defendants and Appellants, Ruth Tashma, Defendant and Respondent.

L.A. 30865.

Supreme Court of California

Aug. 16, 1978.

Green, Royce & Seaman, Irving Green, Beverly Hills, and Leonard Sacks, Encino, for plaintiff and appellant.

Buck, Molony, Nimmo & Ammirato, Buck & Smith, Mark D. Rutter and Richard E. Smith, Long Beach, for defendants and appellants.

Spray, Gould & Bowers and Michael R. Brown, Los Angeles, as Amici Curiae on behalf of defendants and appellants.

Edward L. LeBerthon and Fernandes & LeBerthon, Los Angeles, for defendant and respondent.

TOBRINER, Justice.

For the third time in recent years, we are confronted with the question of whether section 17158 of the Vehicle Code violates the equal protection clause of our state or federal Constitution (Cal.Const., art. I, § 7; U.S.Const., 14th Amend.) by singling out, from the wide range of automobile accident victims, one narrow class injured passengers who happen to own the car in which they are injured and barring this, and only this, class of victims from obtaining recovery from drivers who negligently caused their injuries.

In April 1975, our court initially concluded in Schwalbe v. Jones (1975) 120 Cal.Rptr. 585, 534 P.2d 73, that this statutory provision violated the constitutional equal protection guarantee. Thereafter, however, we granted a rehearing in Schwalbe and, upon rehearing, a majority of the court sustained the statute against constitutional challenge. (Schwalbe v. Jones (1976) 16 Cal.3d 514, 128 Cal.Rptr. 321, 546 P.2d 1033.) After a careful reexamination of the issue, we have concluded that our original constitutional determination was correct and that, under the appropriate governing equal protection standard, the disparate treatment mandated by section 17158 cannot be constitutionally sustained. Since the trial court in the instant case proceeded upon the assumption that section 17158 was in fact unconstitutional, we conclude that its judgment should be affirmed.

1. The facts.

On February 13, 1971, plaintiff Gertrude Cooper, age 64, was seriously injured in an automobile accident while riding as a passenger in her own car. At the time of the accident, defendant Claude Lewis Bray, age 65, an employee of the service station where Miss Cooper regularly took her car for servicing, was driving the vehicle. Miss Cooper had been a customer of the Colonial Oil (Arco) service station where Bray worked for five or six years prior to the accident, and on a number of occasions Mr. Bray had picked up Miss Cooper's car at her residence (located a block or two from the station), had driven it to the station for repairs, and had then returned the car to her home. On two or three occasions, Mr. Bray had thereafter driven the car back to the station with Miss Cooper riding as a passenger, and Miss Cooper had then driven the car back to her own home alone.

On February 12, 1971, the day before the accident, Miss Cooper called the station because her car had stalled as she entered the driveway of her residence. She arranged to have the vehicle picked up, repaired and returned to her home at 8 a. m. the following day.

The next morning, Mr. Bray called to tell Miss Cooper that her car was ready and that he would return it to her home. A few minutes later, Mr. Bray drove into Miss Cooper's driveway and told her "to get in there, I'm going to drive myself back to the station." Miss Cooper entered the passenger's side and Mr. Bray drove toward the station.

Although the above facts were uncontested, the testimony at trial was in conflict as to the events immediately preceding the accident. Miss Cooper testified that Mr. Bray drove the short distance between her home and the service station at a relatively fast speed (30 to 35 miles an hour), that he failed either to slow down or stop at a stop sign at the last intersection before the service station and that he made a left turn in front of on-coming traffic while the car was still traveling at more than 30 miles an hour. Miss Cooper also testified that as Bray was making the left turn into the service station she suddenly saw a car approaching rapidly from her right and shouted, "Oh, look out, a car is coming." The warning came too late, however, to avert the ultimate collision.

Mr. Bray's recollection of the events differed significantly from Miss Cooper's. He testified that he made a full stop at the last intersection's stop sign, drove slowly up the street adjacent to the service station, activated his left turn signal and then, observing no on-coming cars, commenced a left-hand turn into the service station. He stated that he then heard Miss Cooper's sudden scream and saw a Chevrolet station wagon approaching very rapidly. The station wagon collided with the right front passenger door approximately one second later, spinning the Cooper vehicle around and causing it to collide with another customer's car in the service station.

Ruth Tashma, the driver of the Chevrolet station wagon, also testified at trial. Mrs. Tashma stated that she was driving approximately 35 miles per hour, and that, although it was a clear day, she did not see the Cooper vehicle until it was but a few feet from her car. She stated that the Cooper car turned left, at an excessive rate of speed, directly in front of her car, and that she did not have time either to brake or to swerve to avoid the accident.

Although the facts leading to the accident were in dispute, the unfortunate consequences of the collision were all too clear. As a result of the impact of the collision, Miss Cooper was propelled through the windshield of her automobile and suffered lacerations and bleeding from her eyes and from the rest of her face. She also sustained an inguinal hernia, fractures of her right wrist and ribs, extensive lacerations and injury to her right shoulder and a number of post-traumatic neurological disorders.

In January 1972, Miss Cooper commenced the instant action against Bray, Colonial Oil (Bray's employer), and Mrs. Tashma. Prior to the commencement of trial, our court rendered our initial decision in Schwalbe v. Jones, supra, holding unconstitutional Vehicle Code section 17158 insofar as that section barred owner-passengers from recovering for injuries negligently inflicted by drivers of their own vehicles. On the basis of Schwalbe, the trial court indicated that it would submit the entire case to the jury under ordinary negligence principles.

During the pendency of the trial, however, our court granted a rehearing in Schwalbe, and counsel for Bray and Colonial Oil then objected to having the jury instructed under ordinary negligence principles, arguing that under section 17158 these defendants could only be held liable if the jury found that the accident resulted from Bray's intoxication or willful misconduct. The trial court nonetheless instructed the jury that liability of all defendants could be posited on ordinary negligence principles, apparently taking the position that, as the original Schwalbe opinion had held, section 17158 was indeed unconstitutional as applied to owner-passengers. In addition, over defendants' objections, the trial court refused to give any comparative or contributory negligence instructions, concluding that there was insufficient evidence of Miss Cooper's negligence to warrant such instructions.

After deliberation, the jury, by a nine-to-three vote, returned a verdict finding Bray and Colonial Oil liable for Miss Cooper's injuries, but absolving Mrs. Tashma of any responsibility for the accident. The trial court entered judgment in accordance with the jury verdict.

Defendants Bray and Colonial Oil now appeal from the judgment entered against them, contending principally that, in light of this court's intervening decision on rehearing in Schwalbe v. Jones, supra, 16 Cal.3d 514, 128 Cal.Rptr. 321, 546 P.2d 1033, the trial court erred in permitting the jury to find them liable under ordinary negligence principles. Plaintiff Cooper, in turn, appeals from the judgment in favor of Mrs. Tashma, claiming that under the evidence presented at trial, Mrs. Tashma's liability was established as a matter of law. We turn first to the appeal of defendants Bray and Colonial Oil.

2. The disparate treatment accorded owner-passengers by section 17158 bears no rational relation to a realistically conceivable legislative purpose and thus the section violates the equal protection clauses of the California and United States Constitutions.

The merits of defendants' appeal turn principally upon the constitutionality of Vehicle Code section 17158 which bars an automobile "owner-passenger," injured in an accident, from maintaining a cause of action against a permissive driver of his or her vehicle, unless the injuries result from the intoxication or willful misconduct of the driver. ¹ Despite the provisions of the statute, the trial court instructed the jury that the plaintiff owner-passenger in this case could recover damages from the permissive driver (Bray) and his employer under traditional negligence principles. If section 17158's owner-passenger provision is constitutional, the trial court's instructions were clearly erroneous and prejudicial, and a reversal of the judgment would be required. ² If, on the other hand, the statutory provision is unconstitutional, the trial court did not err in instructing the jury on this issue.

As already noted, the question of the constitutionality of section 17158's owner-passenger provision was most recently before our court in Schwalbe v. Jones, supra, 16 Cal.3d 514, 128 Cal.Rptr. 321, 546 P.2d 1033. In Schwalbe, both the majority and dissenting opinions agreed that in assessing the validity of the classifications drawn by section 17158 under equal protection principles, the applicable equal protection standard of review is the...