Paulson v. McMillan

• Decision Date: 10 April 1941
• Docket Number: 28227.
• Citation: 111 P.2d 983,8 Wn.2d 295
• Parties: PAULSON et ux. v. McMILLAN et al.
• Court: Washington Supreme Court

111 P.2d 983

8 Wn.2d 295

PAULSON et ux. v. McMILLAN et al.

No. 28227.

Supreme Court of Washington

April 10, 1941

Department 1.

Action by A. R. Paulson and another against A. J. McMillan, Mrs. A J. McMillan, and Enita McMillan Foster, to recover for damages sustained in an automobile collision, wherein Enita McMillan Foster filed a cross-complaint, A. J. McMillan and Mrs. A. J. McMillan filed a cross-complaint for damages to automobile and with respect to medical fees and hospital bills expended by them on behalf of their minor children, and A. J. McMillan, as guardian ad litem of Donald McMillan cross-complained with respect to Donald McMillan's injuries sustained in the collision. From the judgment entered dismissing the complaint and all the cross-complaints, A. J. McMillan, as guardian ad litem of Donald McMillan, appeals.

Judgment reversed, and cause remanded, with directions.

Appeal from Superior Court, King County; Hugh Todd, Judge.

Green &amp Burnett, John L. Vogel, and Eggerman & Rosling, all of Seattle, for appellant.

DuPuis & Ferguson, of Seattle, for respondents.

ROBINSON Chief Justice.

On December 23, 1939, Enita McMillan, a nineteen-year-old girl accompanied by a girl friend and by her fifteen-year-old brother, Donald McMillan, took her father's car and drove north of Seattle to cut a Christmas tree. When they returned home, they found that they had left the ax in the woods. Enita and Donald McMillan went back to get it. They returned to the city by way of Holman Road, an arterial highway which is intersected by Twelfth Avenue Northwest. A. R. Paulson and wife were driving on that street and the two cars collided in the intersection. A month after the accident, Enita McMillan became Mrs. Foster. Paulson and wife brought this action against her and her father and mother, A. J. McMillan and wife, for damages in the amount of $5,850. Enita McMillan Foster cross-complained for $15,000, later reduced by amendment to $5,000. A. J. McMillan and wife cross-complained for damages to their car and with respect to medical fees and hospital bills expended by them on behalf of their minor children; and A. J. McMillan, as guardian ad litem of Donald McMillan, cross-complained with respect to Donald's injuries for damages in the sum of $25,000. At the close of a jury trial the following verdict was rendered: 'We, the jury in the above entitled cause, do find that neither party is entitled to recover against the other.'

The defendants and cross-complainants moved for a new trial, which was denied, and a judgment entered dismissing the complaint and all cross-complaints. A. J. McMillan, as guardian ad litem of Donald McMillan, alone appeals, and, assigning errors of law, prays that his ward be granted a new trial. We quote from appellant's brief:

'This appeal is brought on behalf of Donald J. McMillan, a fifteen (15) year old minor, on the theory that he was not and could not have been a joint adventurer with his sister.

'Assignments of Error.

'1. The Court erred in refusing to give the following instruction to the jury, requested by appellant:

"Under the laws of the State of Washington no person under the age of 16 years will be issued a license to operate a motor vehicle within the State. It is not denied that on the 23rd day of December, 1939, Donald McMillan was a minor of the age of 15 years. As a minor he is incapable of entering into an agreement and being under the age of 16 years at the time of the accident, he was not and could not be licensed to operate a motor vehicle in the State of Washington. You are therefore instructed that as a matter of law the negligence of his sister, Enita McMillan Foster, if any, could not be imputed to Donald McMillan, and if under these instructions you find that the Plaintiff was guilty of negligence proximately causing this accident, then you are instructed that your verdict must be in favor of Donald McMillan upon his cross-complaint and against the Plaintiff."

The foregoing assignment raises two questions: (1) Must one have, or be eligible to have, a driver's license in order to engage in a joint adventure by automobile? (2) Is a minor incapable of entering into that relation or status?

A joint adventure is in the nature of a partnership. The relations of the parties in each of such associations are so similar that their rights, duties, and liabilities are generally tested by the same rules. Some courts have gone so far as to say that a joint adventure is subject to exactly the same rules as a technical partnership. 30 Am.Jur. 679, § 5; 48 A.L.R. 1057; 63 A.L.R. 912. It is, of course, unnecessary that every member of a partnership must be able and qualified to do every act required to further its general purpose. For example, one can undoubtedly be a partner in the business of manufacturing watches without being himself able to make a watch or the simplest part thereof. We can conceive of no reason why one who can neither legally nor actually drive an automobile cannot engage in a joint adventure with a person who can. In the instant case, Donald McMillan was legally incapable of driving an automobile, but he could cut down a Christmas tree or search for a mislaid ax.

The second question cannot be so summarily disposed of. The appellant's argument on this phase of the matter may be reduced to a syllogism of which the major premise is, that a joint adventure can only arise out of contract; the minor premise, an infant cannot contract; and the conclusion, that an infant therefore cannot be a party to a joint adventure. The conclusion must be true if the premises are sound. The respondents do not question either premise, but content themselves with citing several of the seven or eight decisions in which this court has held an undertaking to be a joint adventure and the parties thereto joint adventurers, although some, or all, of them were minors. Outstanding examples of this class of cases are: Forman v. Shields, 183 Wash. 333, 48 P.2d 599, and Bates v. Tirk, 177 Wash. 286, 31 P.2d 525.

In Bates v. Tirk, the three persons held to be joint adventurers were, respectively, twenty, eighteen, and sixteen years of age. The appellant, in reply, points out that the question now under discussion was not raised, considered, or discussed in any of that line of cases.

The truth of the appellant's major premise cannot be questioned. His minor premise is stated in the requested instruction in these words: 'As a minor he is incapable of entering into an agreement * * *.' In our opinion, this premise is not sound. Our statute governing the contracts of minors (Rem.Rev.Stat. § 5829) reads as follows: 'A minor is bound, not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money and property received by him by virtue of the contract, and remaining within his control at any time after his attaining his majority.'

A minor is, therefore, capable of making contracts. They are voidable, but, until avoided by disaffirmance, they are contracts nevertheless. Professor Williston says, in section 231 (p. 687) of his treatise on the law of Contracts (Revised Edition of 1936): 'Most of the disputed questions in the law of infancy turn upon the legal meaning of the word 'voidable' as applied to an infant's acts. The natural meaning of the word imports a valid act which may be avoided, rather than an invalid act which may be confirmed, and the weight of authority as well as reason point in the same direction. * * * (Italics ours.)

(Plainly, our statute so imports, for it says: 'A minor is bound * * * by his * * * contracts; * * *.')

Later, in the same section, Professor Williston, after pointing out that the deed of an infant transfers title and that the endorsement of negotiable paper by an infant payee or endorser transfers title, and therefore the infancy of an indorser is no defense to an action by the holder against the maker, goes on to say: '* * * Now inasmuch as the performance of the contract by the infant or his liability for non-performance are wholly dependent upon his own choice until and unless he ratifies the contract after coming of age, it might seem accurate to say that there is until then no contract. But though the distinction is doubtless fine between no contract and a contract which the promisor may perform or not at his pleasure, it is of legal importance. In the case of a note or formal document this is obvious. If the note has no validity until confirmed it is hard to explain how it can be negotiated, * * *. If an infant's executory promise amounted to nothing until ratified, it is impossible to see how it could be consideration for the counter-promise of an adult, but that it is so was early and conclusively settled. * * *'

Appellant, in his brief, quotes at length from a scholarly and valuable article on the Washington Guest Statute appearing in Volume XV, No. 2, of the Washington Law Review and State Bar Journal, at page 87. The crux of the quotation, in so far as it relates to our present inquiry, lies in the following: 'A status or relationship must certainly stand or fall with the contract which creates it, and since the infant's contract is not binding, no legally significant relationship could flow from it; * * *' (p. 98).

But the status of partnership must surely require at least as formal a contract for its creation as does the status of joint adventure, and, as was said in Bush v Linthicum, 59 Md. 344, and reaffirmed in Latrobe v. Dietrich, 114 Md. 8, 78 A. 983, 989: ' All the books upon partnership lay down the proposition that an infant may become a partner with an adult. It is a contract not absolutely...