Perkins v. Robertson

• Decision Date: 05 April 1956
• Citation: 140 Cal.App.2d 536,295 P.2d 972
• Court: California Court of Appeals Court of Appeals
• Parties: Joe PERKINS and Maurice Garnes, minors, by James A. Gardner, guardian ad litem in proper person, Plaintiffs and Appellants, v. Isadore C. ROBERTSON, Defendant and Respondent. Civ. 4995.

Page 972

295 P.2d 972

140 Cal.App.2d 536

Joe PERKINS and Maurice Garnes, minors, by James A. Gardner, guardian ad litem in proper person, Plaintiffs and Appellants, v. Isadore C. ROBERTSON, Defendant and Respondent.

Civ. 4995.

District Court of Appeal, Fourth District, California.

April 5, 1956.

James A. Gardner, Bakersfield, guardian ad litem in pro. per. for appellants.

Borton, Petrini, Conron & Brown, Bakersfield, for respondent.

CONLEY, Justice pro tem.

This is an appeal by minor plaintiffs, Joe Perkins and Maurice Garnes, from a judgment in favor of their step-father, Isadore C. Robertson, after the sustaining without leave to amend of his demurrer to their third amended complaint. The litigation grew out of an automobile wreck in which Ethel Mae Robertson, wife of the defendant and mother of the plaintiffs, was killed and Maurice Garnes injured. By express stipulation of the parties it is established for all purposes of the appeal that the defendant, whose negligence and wilful misconduct are blamed for the casualty, was in loco parentis to both plaintiffs at the time of the accident and also when the action was filed.

This appeal requires answers to the following questions: May an unemancipated or a 'partially emancipated' minor sue a parent, or one in loco parentis, for personal injuries proximately caused by simple negligence, or by wilful misconduct? (2) May heirs of a decedent, consisting of her children, sue another of her heirs, her husband, for her wrongful death, and if so, may recovery be based on his negligence, or on his wilful misconduct?

In the first cause of action in the third amended complaint, Maurice Garnes sues as an unemancipated minor injured as the proximate result of the negligence of the defendant; in the second cause of action as an unemancipated minor for his wilful misconduct; in the third cause of action as a 'partially emancipated' minor injured by his negligence; in the fourth cause of action as a 'partially emancipated' minor for his wilful misconduct. The fifth cause of action is brought by the two minor plaintiffs as the children and heirs of Ethel Mae Robertson on the theory that the defendant proximately caused her death by his negligence; the sixth cause of action is based on his wilful misconduct; the seventh cause of action alleges that the plaintiffs were 'partially emancipated' minors and that the death of their mother was caused by the negligence of defendant; and the eighth cause of action is brought by them as 'partially emancipated' minors on the allegation that defendant was guilty of wilful misconduct.

It should be noted in connection with the demurrer to and motion to strike from the first amended complaint that the court eliminated the allegation that at the time of the accident defendant maintained a valid policy of insurance for public liability and property damage.

The trial court's ruling sustaining the demurrer to the first cause of action without leave to amend was correct. Trudell v. Leatherby, 212 Cal. 678, 300 P. 7, 8, establishes the law in this state that an unemancipated minor child cannot sue his parent, or one who stands toward him in loco parentis, for a tort based on simple negligence; in the opinion the reason for the rule is thus stated:

"* * * The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and he best interest of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.' 20 R.C.L. 631.

"Any proceeding tending to bring discord into the family and disorganize its government may well be regarded as contrary to the common law, and not to be sanctioned by the courts. Such conflict would arise by recognizing the right of a minor child to bring his personal action against the father to recover damages for torts alleged to have been committed by the father in the course of the family relation and resulting in personal injury to the child."

The principle was recognized in Myers v. Tranquility Irrigation District, 26 Cal.App.2d 385, 79 P.2d 419, in Baugh v. Rogers, 24 Cal.2d 200, 148 P.2d 633, 152 A.L. R. 1043, and in the recent case of Emery v. Emery, 45 Cal.2d 421, 289 P.2d 218.

Appellants' argument that the law ought to be changed should properly be addressed to the legislative branch of our government rather than the judicial; for the rule above stated is firmly established in our State by binding precedents; we shall accordingly not discuss the cases cited from other jurisdictions where an opposite or differing view is maintained. In passing, however, it is proper to say that the trial court ruled soundly in requiring the elimination of all reference to public liability and property damage insurance in the pleadings. For the existence of insurance "gives no cuase of action where one did not exist before". Emery v. Emery, supra, 45 Cal.2d 421, 289 P.2d 218, 224. In a tort action an insurance company which has issued a policy indemnifying the defendant against loss or damage is not a proper party to the litigation. Chamberlin v. City of Los Angeles, 92 Cal.App.2d 330, 332, 206 P.2d 661; Van DerHoof v. Chambon, 121 Cal.App. 118, 125-132, 8 P.2d 925. And the rule has been repeatedly stressed in this State that gratuitous references during a jury trial to the existence of insurance, either in argument or in the taking of testimony, will warrant the granting of a motion for mistrial or the reversal of a judgment, Squires v. Riffe, 211 Cal. 370, 295 P. 517; Citti v. Bava, 204 Cal. 136, 266 P. 954; Freeman v. Nickerson, 77 Cal.App.2d 40, 54, 174 P.2d 688; Rising v. Veatch, 117 Cal.App. 404, 3 P.2d 1023; Sischo v. City of Los Banos, 26 Cal.App.2d 642, 80 P.2d 116, 1020; Nichols v. Smith, 136 Cal.App. 272, 28 P.2d 693; Schellenberg v. Southern Cal. Music Co., 139 Cal.App. 777, 35 P.2d 156.

But the appellants say that the foregoing rule does not apply to emancipated minors and that as they are 'partially emancipated' it should not apply to them.

A completely emancipated minor has the right to sue a parent for simple negligence. Martinez v. Southern Pacific Co., 45 Cal.2d 244, 288 P.2d 868; 67 C.J.S., Parent and Child, § 61, pp. 789-790; 165 A.L.R. 723; 19 A.L.R.2d 437. "Emancipation' of a child is the relinquishment by the parent of control and authority over the child, conferring on him the right to his earnings and terminating the parent's legal duty to support the child. It may be express, as by voluntary agreement of parent and child, or implied from such acts and conduct as import consent; it may be conditional or absolute, complete or partial. The emancipation of a minor is not to be presumed and must be proved * * *' (Schouler, 'Marriage, Divorce, Separation and Demestic Relations', Sixth Edition, Vol. 1, p. 897.) (See also 39 Am.Jur. p. 702 et seq.) Section 211 of the Civil Code provides in part: 'The parent, whether solvent or insolvent, may relinquish to the child the right of controlling him and receiving his earnings', and in the early case of Lackman v. Wood, 25 Cal. 147, 151, the power of a father to emancipate his minor child was recognized, the court saying:

'* * * The child is freed by emancipation from parental control; he can claim his earnings thereafter as against his father, and is in all respects his own man.

'Emancipation is defined as 'An act by which a person, who was once in the power of another, is rendered free,' and the adjudged cases show that the doctrine of emancipation, as actually administered, is not less comprehensive than the definition.'

Appellant do not claim complete, but only partial, emancipation, saying as to Joe Perkins that he was seventeen years of age, normal and average in development for that age, allowed to make his own decisions, to manage his own affairs and to enter and leave the parental home at will, employed at various times and allowed to retain his earnings and to spend them as he wished, and as to Maurice Garnes that she was twenty years of age, physically and mentally mature, was allowed freedom to make her own decisions, manage her personal affairs, choose her own friends and enter and leave the family home as she might elect. It is conceded, however, by the appellants, as alleged in the pleading, that Maurice Garnes has always been an invalid, being blind, and that as a consequence she has never received sufficient education to permit her to earn a livelihood, that she is not capable of supporting or taking care of herself, that both minors were dependent on their mother for support, care and maintenance, and that Maurice Garnes was additionally dependent upon her, for nursing and personal care. It is not alleged in the pleading or asserted in their brief by appellants that Maurice Garnes is married or that she was emancipated in that way.

The fact that a minor is permitted to keep and spend his earnings for odd jobs done after school or in summer vacation does not establish his emancipation, Aetna Life Ins. Co. v. Industrial Accident Commission, 175 Cal. 91, 94, 165 P. 15, L.R.A.1918F, 194; Boehm v. C. M. Gridley & Sons, 187 Misc. 113, 63 N.Y.S.2d 587; Tande v. Vernon County, 226 Wis. 632, 276 N.W. 359; and the qualified independance allowed to both minors in this case seems to be about the same as that granted to the older 'teen-agers' in the average American home today. Certainly there is nothing in the complaint showing a complete termination of the parental rights with respect to the control of the minors, or indicating that either child 'did not occupy a subordinate position in the family unit'. Martinez v. Southern Pacific Co., supra, 45 Cal.2d 244, 288 P.2d 868, 873.

'Partial emancipation' is not sufficient to permit a minor to sue a parent for tort based on simple negligence; complete emancipation is a prerequisite. Brumfield v. Brumfield, 194 Va. 577, 74...