Emery v. Emery
| Decision Date | 27 May 1955 |
| Citation | 284 P.2d 150 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Barbara 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, et al., Defendants and Respondents. Civ. 16219. |
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Robert J. Cort, San Francisco, for plaintiffs and appellants.
Worthington, Park & Worthington, Ronsia W. Fields, San Francisco, for respondents.
Barbara and Joyce Emery, minors, brought this action for personal injuries against their father, Buel, and their minor brother James. They allege that these injuries were sustained as the result of an automobile accident which occurred when they were riding as guests in a car owned by Buel and operated by James. Their mother, Esther, as the person who has the care, custody and control of the minor plaintiffs, joined as plaintiffs for recovery of moneys she, allegedly, is obligated to pay for medical, nursing, hospital and other care and treatment of the minor plaintiffs.
General demurrers to the original and the first amended complaints were sustained with leave to amend. Defendants' joint and individual demurrer to the second amended complaint was sustained without leave to amend. Thereafter judgment was rendered that plaintiffs take nothing and that defendants recover their costs. Plaintiffs have appealed.
In such a case all that is required is that a plaintiff state facts entitling him to some type of relief. Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981. 'If a complaint is sustainable on any theory it is not vulnerable to a general demurrer.' Schumm, by Whyner v. Berg, 37 Cal.2d 174, 183, 231 P.2d 39, 43, 21 A.L.R.2d 1051.
Plaintiffs present the following questions: (1) Have Barbara and Joyce stated facts sufficient to constitute causes of action against the defendants, assuming that the latter are not immune from suit because of the family relationship? (2) If they have stated such causes of action may they as unemancipated minors maintain them against their father, Buel? (3) Similarly, may they maintain such causes of action against their brother James? (4) Has Esther stated causes of action against James her minor son and against Buel her husband?
In view of the fact that the accident occurred in Idaho we must endeavor to find the answers which the Supreme Court of that state would give in response to these questions were they before it for consideration and decision. Shoemaker v. Floor, 1950, 117 Utah 434, 217 P.2d 382, 384; R. J. Reynolds Tobacco Co. v. Newby, 9 Cir., 1944, 145 F.2d 768; Davis v. Smith, D.C.E.D.Pa.1954, 126 F.Supp. 497, 504.
(1) An Idaho statute declares the obligations of the owner or operator of a motor vehicle toward a person riding as his quest. This it does in these terms: '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 injuries, 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.' 9 Idaho Code of 1947, § 49-1001; Stats.1939, ch. 160, p. 285.
'The term 'reckless disregard' as used in said section means an act or conduct destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong rash; wanton disregard, or conscious indifference to consequences.' Foberg v. Harrison, 1950, 71 Idaho 11, 225 P.2d 69, 71. See also Loomis v. Churth, Idaho, 1954, 277 P.2d 561, 563.
We entertain no doubt that the minor plaintiffs stated facts which meet in full measure the requirements of this definition. 1
This definition, while it denies the guest a remedy in the case of simple negligence, apparently is not synonymous with the definition of 'conduct * * * in reckless disregard of the safety of another' as furnished by section 500 of the Restatement of the Law of Torts, nor with the concept of 'wilful misconduct' as expressed in section 403 of the California Vehicle Code. Said section 500 reads as follows: 'The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's couduct not only created an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.' 2 We observe that the editor says of section 500: 'The conduct described in this Section is often called 'wanton or wilful misconduct' both in statutes and judicial opinions.' II Restatement of the Law of Torts, p. 1293. Professor Charles E. Carpenter, who prepared the California Annotations to this Restatement, cites a line of decisions interpretive of 'wilful misconduct' as used in section 403 of the California Vehicle Code, which he states are in accord with the rule expressed in section 500 of the Restatement. See 'California Annotations,' pp. 275-276, 1940 Pocket Supplement to II Restatement of the Law of Torts.
The Idaho Supreme Court has indicated there is a difference between 'reckless disregard,' as used in its guest statute, and 'wilful misconduct' as commonly used. See Dawson v. Salt Lake Hardware Co., 1943, 64 Idaho 666, 136 P.2d 733, 738; Hughes v. Hudelson, 1946, 67 Idaho 10, 169 P.2d 712, 716; Shoemaker v. Floor, 1950, 117 Utah 516, 217 P.2d 382, 384-385, supra. Although not coextensive with either of these other two concepts, 'reckless disregard' as thus interpreted is included within each of them. This, apparently, was given direct recognition by the Supreme Court of Idaho in Mason v. Mootz, 1953, 73 Idaho 461, 253 P.2d 240. After pointing out various deficiencies in the evidence, the court concluded it was 'wholly insufficient to support the claim of reckless disregard under the guest statute' and cited some 20 cases, including a number which relate to 'willful misconduct.' Of the latter, the court said: 253 P.2d at page 243.
Also it is hardly conceivable that the Legislature of Idaho intended to dispense with recovery in a case of 'willful misconduct' while allowing recovery in a case of 'reckless disregard' of others' rights, when the latter tokens a somewhat less culpable violation of duty than the former; especially, in view of the principle that statutes of this nature are viewed as not abolishing the right or the cause of action but as merely changing the nature and character of the proof required in each case, Barr v. Carroll, 128 Cal.App.2d 23, 27 et seq., 274 P.2d 717, and cases there cited.
Accordingly, the fact is noted that the minor plaintiffs have stated facts which constitute 'wilful misconduct' within the meaning of that term as used in section 403 of the California Vehicle Code. 3 We rely upon the principles enunciated in such cases as Meek v. Fowler, 3 Cal.2d 420, 426, 45 P.2d 194; Weber v. Pinyan, 9 Cal.2d 226, 230-238, 70 P.2d 183, 112 A.L.R. 407; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869-870, 118 P.2d 465; Cope v. Davison, 30 Cal.2d 193, 196-200, 180 P.2d 873, 171 A.L.R. 667; Anderson v. Newkirch, 101 Cal.App.2d 171, 173, 225 P.2d 247. Excessive speed taken alone need not import wilful misconduct but under all of the surrounding circumstances of a case it may. Hallman v. Richards, 123 Cal.App.2d 274, 281, 266 P.2d 812; Anderson v. Newkirch, supra, 101 Cal.App.2d 171, 178-179, 225 P.2d 247, and cases there cited.
Although there is authority for pleading wilful misconduct in fairly general terms, Gibson v. Easley, 138 Cal.App. 303, 313, 32 P.2d 983; Frisvold v. Leahy, 15 Cal.App.2d 752, 757, 60 P.2d 151, when the significant facts are pleaded with particularity and in detail in addition to the general allegations (as in the instant case) there can be no doubt that the pleading is sufficient. See Norton v. Puter, 138 Cal.App. 253, 256, 32 P.2d 172.
(2) May Barbara and Joyce, as unemancipated minors, sue their father, Buel, for damages for personal injuries allegedly caused by his wilful misconduct?
We are confronted with the principle announced in 1891 in HEWLETT V. GEORGE, 68 MISS. 703, 9 SO. 885,4 13 L.R.A. 682, that 9 So. at page 887. This was said, without qualification, in a case of false imprisonment, incarceration of a child in an insane asylum. It was followed in 1903 by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, cruel and inhuman treatment of a child by its stepmother with the consent of its father; and in 1905 by Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, the rape of a minor child by her father.
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