Schwalbe v. Jones

• Decision Date: 16 April 1975
• Citation: 120 Cal.Rptr. 585,534 P.2d 73
• Parties: Dale D. SCHWALBE et al., Plaintiffs and Appellants, v. Thomas H. JONES, Jr., Defendant and Respondent. S. F. 23072.
• Court: California Supreme Court

Page 585

120 Cal.Rptr. 585

534 P.2d 73

Dale D. SCHWALBE et al., Plaintiffs and Appellants, v. Thomas H. JONES, Jr., Defendant and Respondent.

S. F. 23072.

Supreme Court of California, In Bank.

April 16, 1975.

As Modified April 22, 1975.

For Opinion on Hearing, see 128 Cal.Rptr. 321, 546 P.2d 1033.

Herbert Resner, Stephen H. Tabor and Belli, Ashe & Choulos, San Francisco, for plaintiffs and appellants.

Gassett, Perry, Katzen, Frank & Bondelie and Ronald L. Stefani, San Jose, for defendant and respondent.

TOBRINER, Justice.

Prior to 1973, Vehicle Code section 17158 forbade civil recovery for injuries suffered by an automobile guest stemming from the negligent driving of his host. The provision also precluded recovery by an automobile owner for injuries incurred while the owner was a passenger in his own vehicle and based upon the negligence of the person to whom the owner had entrusted his vehicle for driving.

In Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, we unanimously declared section 17158 violative of the equal protection guarantees embodied in the California (art. I, §§ 11, 21) and United States (14th Amend.) Constitutions insofar as the statute applied to negligence actions for injuries to automobile guests. ¹ Because plaintiff Brown was a nonowner passenger, however, we expressed no view in that opinion on the validity of the statute as applied to injuries sustained by owner passengers. (Brown v. Merlo, supra, at p. 862, fn. 3, 106 Cal.Rptr. 388, 506 P.2d 212.) Subsequent to that decision, the Legislature eliminated from section 17158 all reference to vehicular guests but retained the language respecting owner passengers. ²

Asked, in the instant case, to pass upon the validity of amended section 17158, ³ we conclude that it suffers from infirmities similar to those which afflicted its unconstitutional predecessor. Like that predecessor, present section 17158 is not reasonably related to the dual legislative goals of protecting hospitality and eliminating collusive fraud. Although defendant contends that section 17158 serves to promote the public safety by encouraging owners to exercise care in the selection and control of drivers for their vehicles, the statute bears no rational relationship to that objective. We conclude that the mere fact of ownership can no more serve as a basis for depriving one of a negligence claim than can the status 'automobile guest.'

Before explaining these conclusions, we set forth the undisputed principal facts of the present controversy. The action arose out of an automobile accident which occurred on an Oakland freeway in June 1967. Defendant Thomas Jones was driving a sports car which he had purchased new but had sold to his wife Patricia Schwalbe Jones prior to their marriage. Attached to the sports car by a nylon towline was an inoperable Renault, also owned by Patricia, in which Patricia was riding as a passenger and which one Albert Pol was steering. Approximately one mile after the vehicles entered the freeway, the nylon attachment suddenly broke. The Renault rolled over, and Patricia sustained fatal injuries. Her parents Dale and Leone Schwalbe thereafter brought the present wrongful death action against Thomas Jones. At the close of plaintiffs' evidence in that action, the trial court granted defendant's motion for nonsuit with respect to plaintiffs' negligence claim on the ground that section 17158 precluded recovery on that theory. ⁴ Plaintiffs contend that section 17158 is unconstitutional and that the trial court thus should have denied defendant's nonsuit motion.

Relying primarily upon our decision in Brown and the principles enunciated therein, we sustain plaintiffs' contentions. Brown served to demonstrate that former section 17158's prescription respecting automobile guests was not rationally related to its asserted purposes, protecting hospitality and reducing collusive fraud. (See also Ayer v. Boyle (1974) 37 Cal.App.3d 822, 112 Cal.Rptr. 636.) The hospitality argument, we explained, did not support differential treatment of automobile and other varieties of guests and also ignored the general prevalence of liability insurance. (Brown v. Merlo, supra, 8 Cal.3d at pp. 859, 864-872, 106 Cal.Rptr. 388, 506 P.2d 212.) We further explained that the interest in eliminating fraud did not justify wholesale preclusion of numerous bona fide claims and did not conform to a significant body of California common law decisions. (Id., at pp. 859-860, 872-878, 106 Cal.Rptr. 388, 506 P.2d 212.)

Looking to the rationales for the guest rule we rejected in Brown, we believe they also fail to sustain the owner rule. First of all, preclusion of negligence actions by owners does not rationally further any state interest in promoting hospitality. The widespread availability of liability insurance demonstrates that 'it is the insurance company, and not the [defendant driver], that in the majority of instances wins protection under [present section 17158].' (Brown v. Merlo, supra, at p. 868, 106 Cal.Rptr. at p. 397, 506 P.2d at p. 321.) At stake, in almost any action by an owner against the person driving him are not the financial fortunes of the owner and driver or the preservation of their mutual relationship but rather the assets of an insurance company.

Furthermore, if elimination of negligence claims by owner passengers has any effect upon hospitality, that effect may be one of deterrence rather than encouragement. The car owner often will be less rather than more inclined to invite others to drive his car if he is deprived of a cause of action in negligence against those others. ⁵ (See Wilson v. Workman (D.Del.1961) 192 F.Supp. 852, 855; Peterson v. Winn (1962), 84 Idaho 523, 373 P.2d 925, 927; Note, Problems of Recovery Under the Iowa Guest Statute (1962) 47 Iowa L.Rev. 1049, 1056.) Indeed, current section 17158 deprives the host of his negligence claim, not the guest. The owner, who often will have done his guest a favor by permitting him to travel in and drive the owner's car, finds himself unable to recover for the guest's negligence. Rather than reward the owner for his generosity, the statute penalizes him for it.

We also believe that present section 17158 fares no better with respect to the other rationale we confronted in Brown, namely that elimination of negligence actions by automobile guests is an acceptable means to eliminate collusive fraud. As explained in Brown (supra, 8 Cal.3d at pp. 872-878, 106 Cal.Rptr. 388, 506 P.2d 212), we have rejected analogous arguments in various common law contexts (see, e. g., Gibson v. Gibson (1971) 3 Cal.3d 914, 919-920, 92 Cal.Rptr. 288, 479 P.2d 648 (negligence action by child against parent); Klein v. Klein (1962) 58 Cal.2d 692 695-696, 26 Cal.Rptr. 102, 376 P.2d 70 (negligence action by spouse against spouse)), and believe the rationale a constitutionally unacceptable justification for the guest rule. (Cf. Glona v. American Guar. & L. Ins. Co. (1968) 391 U.S. 73, 76, 88 S.Ct. 1515, 20 L.Ed.2d 441; Gomez v. Perez (1973) 409 U.S. 535, 538, 93 S.Ct. 872, 35 L.Ed.2d 56.) Comparing that rule to present section 17158, we concur in the statement of Justice Peters that 'there is no more danger of a fraudulent claim being filed by an owner occupant . . . than by a . . . nonowner occupant' and that 'there is no more danger of an owner occupant conniving with the driver than there is from a nonowner occupant.' (Patton v. La Bree (1963) 60 Cal.2d 606, 611, 35 Cal.Rptr. 622, 625, 387 P.2d 398, 401 (dissenting opinion).)

We conclude, therefore, that the interest in protecting hospitality and preventing fraud affords no basis for distinguishing owner passengers from nonowner passengers. Consequently, present section 17158 can endure only if it rationally furthers some legitimate objective other than those proclaimed as justifications for the guest rule. Defendant offers only one such alternative, namely that an owner passenger is more able than a nonowner passenger to direct and control the behavior of persons driving his car. The argument apparently is that a car owner will be more inclined to control the driver if the owner recognizes that if injured, he cannot bring a negligence action against the driver. The beneficiary, argues defendant, is the public whose exposure to careless driving decreases proportionately to the increased vigilance of the owner. For the reasons discussed below, we conclude that the present statute cannot be sutained on this basis.

To begin with, we cannot accept the main premise of defendant's argument, namely that an owner passenger is in a substantially better position to eliminate automobile accidents than a nonowner passenger or guest. First, it is common knowledge that as a result of the speed at which cars now travel and the congestion of streets and freeways, most traffic accidents develop almost instantaneously, leaving any passenger--owner or nonowner--little opportunity to intercede. Second, as for those few occasions when he has time to respond, the owner passenger's ability to prevent an accident is still greatly limited; once he has surrendered the wheel, the owner, to revert to a cliche, is no longer 'in the driver's seat.' Physical intercession in all likelihood would increase rather than reduce the probability of mishap, and in any event, the likelihood and effectiveness of physical intercession as well as verbal assistance such as the sounding of a warning are functions of a passenger's presence in the car, not his title to the car. ⁶

Defendant contends, however, that even if the owner has little control once the permissive user is 'in the driver's seat,' he nevertheless has absolute control over who will drive his automobile. ⁷ Defendant argues that the present statute, by barring an action by the owner against a negligent driver, is rationally related to the objective of encouraging owners to use due cars in selecting those to whom they will...