Emery v. Emery

Decision Date28 October 1955
Citation289 P.2d 218,45 Cal.2d 421
CourtCalifornia Supreme Court
PartiesBarbara EMERY and Joyce Emery, minors, by and through their Guardian ad litem, Esther Louise Emery, and Esther Louise Emery, Plaintiffs and Appellants, v. Buel E. EMERY, James Buel Emery, First Doe, Second Doe, Third Doe, and Fourth Doe, Defendants and Respondents. S. F. 19339

J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein and Robert J. Cort, San Francisco, for appellants.

Worthington, Park & Worthington and Ronsia W. Fields, San Francisco, for respondents.

TRAYNOR, Justice.

Plaintiffs Barbara and Joyce Emery, unemancipated minor daughters of plaintiff Esther Emery and defendant Buel Emery, brought this action to recover for personal injuries sustained in an automobile accident that occurred in the State of Idaho. At the time of the accident, Barbara and Joyce were riding as guests in an automobile owned by Buel and driven by defendant James Emery, their unemancipated minor brother. Esther, appearing individually, alleges that she is responsible for the support, maintenance, and medical care of Barbara and Joyce and attempts to state a separate cause of action to recover for medical, nursing, hospital, and other care furnished Barbara and Joyce. Judgment for defendants was entered on an order sustaining, without leave to amend, defendants' general demurrer to plaintiffs' second amended complaint. Plaintiffs appeal.

The first question presented on appeal is whether Barbara and Joyce have alleged facts 1 sufficient to constitute causes of action against defendants, assuming that the latter are not immune from suit because of their family relationship to these plaintiffs. Since the accident occurred in the State of Idaho, the law of that state is determinative of the answer to this question. Grant v. McAuliffe, 41 Cal.2d 859, 862, 264 P.2d 944, 42 A.L.R.2d 1162; Loranger v. Nadeau, 215 Cal. 362, 366-367, 10 P.2d 63, 84 A.L.R. 1264. The applicable Idaho statute provides, 'No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause for damages against such owner or operator for injures, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said owner or operator or caused by his intoxication or his reckless disregard of the rights of others.' Idaho Code, § 49-1001.

The Idaho Supreme Court has interpreted the term 'reckless disregard' in that statute as describing conduct that is not necessarily as culpable as that described by the words 'wilful misconduct' as used in section 403 of the California Vehicle Code. 2 Mason v. Mootz, 73 Idaho 461, 253 P.2d 240, 243; Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712, 716. A fortiori, if the complaint states causes of action for 'wilful misconduct' within the meaning of the California statute it also states causes of action for conduct in 'reckless disregard of the rights of others' within the meaning of the Idaho statute.

'Willful misconduct depends upon on the facts of a particular case, and necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. (Citations.)' Norton v. Puter, 138 Cal.App. 253, 258, 32 P.2d 172, 174, quoted with approval in Parsons v. Fuller, 8 Cal.2d 463, 468, 66 P.2d 430. "Willful misconduct implies at least the intentional doing of something either with a knowledge that serious injury as a probable (as distinguished from a possible) result, or the intentional doing of an act with a wanton and reckless disregard of its possible result." Meek v. Fowler, 3 Cal.2d 420, 426, 45 P.2d 194, 197, quoted with approval in Mercer-Fraser Co. v. Industrial Acc. Comm., 40 Cal.2d 102, 118, 251 P.2d 955. In Parsons v. Fuller, supra, it was held that the evidence, which showed that the defendant had 'persisted' in driving at an excessive rate of speed 'for some hours and over many miles of travel, after repeated protests on the part of his guest, and while they were traveling over a mountain road with frequent curves * * *,' was sufficient to show wilful misconduct. 8 Cal.2d at page 465, 66 P.2d at page 431. In that case the court said,

"To us it seems clear that one who, while driving an automobile, knowingly flirts with danger and, without necessity or emergency compelling him, 'takes a change' on killing or injuring himself and others, who may be so unfortunate as to be riding with him, is guilty of willful misconduct." Ibid., 8 Cal.2d at pages 468-469, 66 P.2d at page 433. In the present case it is alleged in the complaint (see footnote 1, supra) that James was an unskilled driver, that immediately before the accident he was 'sleepy and drowsy' and had not had any sleep for more than 24 hours, that for a long period of time and many miles of travel before the accident he drove at high and excessive rates of speed on a road that was narrow and unfamiliar to him, that the foregoing facts were known to Buel, that James drove under these circumstances with the consent and under the direction of Buel, that James fell asleep 'while said car was travelling at said high and excessive rates of speed, and lost control thereof, causing said car to roll over. * * *' Applying the foregoing principles, we conclude that the complaint adequately alleges wilful misconduct on the part of James and Buel and thus that the minor plaintiffs have stated caused of action against defendants, assuming that the latter are not immune from suit because of their family relationship to the minor plaintiffs.

To determine whether Buel and James are immune from liability to Barbara and Jayce for the torts alleged in the complaint, it is first necessary to decide whether that question should be determined by the law of California or that of Idaho. This choice of law problem is one of first impression in this state. The possible choices in cases like the present one are three: the law of the place where the injury occurred, the law of the forum, and the law of the state in which the family is domiciled. We are aware of only two reported cases on the precise question presented. In Ball v. Ball, 269 P.2d 302, 304, the Supreme Court of Wyoming applied the law of the place (Montana) where the injury occurred to determine this question. It is not, however, a question of tort but one of capacity to sue and be sued 3 and as to that question the place of injury is both fortuitous and irrelevant. In Fowlkes v. Ray-O-Vac Co., 52 Ga.App. 338, 340, 183 S.E. 210, 212, the Court of Appeals of Georgia held that in actions between a minor child and its parent the 'law of the forum governs as to the parties and the right to sue.' In a somewhat analogous situation, many courts have held in tort actions between husbands and wives that questions of capacity to sue and be sued should be governed by the law of the forum. (See Ford, Interspousal Liability for Automobile Accidents in the Conflict of Laws, 15 U.Pitts.L.Rev. 397, 419, and cases cited.) It should be noted, however, that in many of these cases, as in Fowlkes v. Ray-O-Vac, supra, the state of the forum was also the state of the domicile. Although tort actions between members of the same family will ordinarily be brought in the state of the family domicile, the courts or another state will in some cases be a more convenient forum, and thus the question arises whether the choice of law rule should be expressed in terms of the law of the forum or that of the domicile. We think that disabilities to sue and immunities from suit because of a family relationship are more properly determined by reference to the law of the state of the family domicile. That state has the primary responsibility for establishing and regulating the incidents of the family relationship and it is the only state in which the parties can, by participation in the legislative processes, effect a change in those incidents. Moreover, it is undesirable that the rights, duties, disabilities, and immunities conferred or imposed by the family relationship should constantly change as members of the family cross state boundaries during temporary absences from their home. Since all of the parties to the present case are apparently domiciliaries of California, we must look to the law of this state to determine whether any disabilities or immunities exist.

Defendants contend that Trudell v. Leatherby, 212 Cal. 678, 300 P. 7, and Myers v. Tranquillity Irrigation District, 26 Cal.App.2d 385, 79 P.2d 419, are controlling on the question of Buel's immunity to suit by his unemancipated minor daughters, Barbara and Joyce. In Trudell v. Leatherby it was stated that a "minor child has no right of action against a parent for the tort of the latter", 212 Cal. at page 680, 300 P. at page 8, but plaintiff points out that both Trudell v. Leatherby and Myers v. Tranquillity Irrigation District involved actions for injuries caused by the parent's negligence, whereas in the present case Barbara and Joyce state causes of action for wilful misconduct. To sustain their contention, plaintiffs cite a number of cases from other jurisdictions holding that, although a parent is not responsible to his minor child for negligence, he is responsible for wilful and malicious torts. Wright v. Wright, 85 Ga.App. 721, 70 S.E.2d 152, 155-156 (wilful misconduct); Theschman v. Treschman, 28 Ind.App. 206, 210-212, 61 N.E.2d 961 (assault and battery); Siembab v. Siembab, 202 Misc. 1053, 1056, 112 N.Y.S.2d 82 (wilful misconduct); Meyer v. Ritterbush, 196 Misc. 551, 554, 92 N.Y.S.2d 595 (wilful misconduct), affirmed 276 App.Div. 972, 94 N.Y.S.2d 620; Mahnke v. Moore, 197 Md. 61, 68, 77 A.2d 923 (intentional mental cruelty); Dix v. Martin, 171 Mo.App. 266, 274, 157 S.W. 133 (assault); Cowgill v. Boock, 189 Or....

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