Schwalbe v. Jones

• Decision Date: 12 March 1976
• Docket Number: S.F. 23072
• Citation: 546 P.2d 1033,16 Cal.3d 514,128 Cal.Rptr. 321
• Court: California Supreme Court
• Parties: , 546 P.2d 1033 Dale D. SCHWALBE et al., Plaintiffs and Appellants, v. Thomas H. JONES, Jr., Defendant and Respondent.

Page 321

128 Cal.Rptr. 321

16 Cal.3d 514, 546 P.2d 1033

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.

March 12, 1976.

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

Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, William H. Lally, Sacramento, Stephen I. Zetterberg, Claremont, Robert G. Beloud, Upland, Ned Good, Los Angeles, David B. Baum, Beverly Hills, Arne Werchick, San Francisco, Elmer Low, Pasadena, Sanford M. Gage, Beverly Hills, Leonard Sacks, Pico-Rivera, and Bruce I. Cornblum, San Jose, as amici curiae on behalf of plaintiffs and appellants.

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

SULLIVAN, Justice.

In Brown v. Merlo (1973) 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212, we held that former section 17158 of the Vehicle Code, the so-called 'guest statute,' was violative of the equal protection guarantees of the United States and California Constitutions insofar as it precluded recovery by a nonowner 'guest' against the driver or one legally liable for the conduct of the driver on account of personal injury to or death of the guest proximately resulting from the simple negligence of the driver. We expressly declined at that time to intimate an opinion as to the validity of the remaining portion of the statute, dealing with injury to, or death of, an owner riding as a passenger in his own vehicle. ¹ Today we squarely confront the latter issue.

This is an action for wrongful death brought by the parents of the decedent Patricia Schwalbe Jones and arising out of an accident which occurred on the MacArthur Freeway in Oakland on June 13, 1967. Decedent, who had been recently married to defendant Thomas H. Jones, Jr., owned two automobiles, a Triumph sports car and a Renault sedan. The Renault had been inoperable for about six months and decedent had decided to tow it to Saratoga to give it to a friend. A nylon towline was obtained, and the Renault was tied by the frame to a trailer hitch on the Triumph, leaving some four to five feet between the vehicles. Decedent's husband (defendant Jones) who was to drive the Triumph, urged decedent to ride with him and to allow a friend, one Albert Pol, to steer the Renault. Decedent at first refused to do so, insisting that the steer the Renault; finally she agreed to allow Pol to steer and decided to ride in the vehicle as passenger. The parties reached the freeway without incident and were headed south, travelling at from 40 to 50 miles an hour, when the Renault began to swerve violently and the towline broke. The car left the freeway and overturned, resulting in fatal injuries to decedent. Pol sustained no serious injuries.

Decedent's parents, Dale and Leone Schwalbe, brought the instant action against decedent's husband, alleging both negligence and willful misconduct. At the close of their evidence the trial court granted defendant's motion for nonsuit on the negligence count on the ground that section 17158 precluded recovery on that theory. Trial proceeded on the count alleging willful misconduct, resulting in a verdict for defendant. Plaintiffs appeal from the ensuing judgment. Their major contention, as indicated above, is that the owner portion of former section 17158 (which now constitutes the whole of the present section--see fn. 1, Ante) suffers from the same constitutional defect which afflicted the 'guest' portion in that the distinction now created between owner-passengers and nonowner-passengers lacks any rational legislative basis. They also contend that the trial court erred in its instructions to the jury on the issue of willful misconduct.

I

'The . . . basic and conventional standard for reviewing economic and social welfare legislation in which there is a 'discrimination' or differentiation of treatment between classes or individuals . . . manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and 'requir(es) merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.' (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784, 87 Cal.Rptr. 839, 471 P.2d 487, 500. . . .)' (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 16, 112 Cal.Rptr. 786, 797, 520 P.2d 10, 21.) '(T)he burden of demonstrating the invalidity of a classification under this standard rests squarely upon The party who assails it. (Lindsley v. Natural Carbonic Gas Co. (1911) 220 U.S. 61, 78--79, 31 S.Ct. 337, 55 L.Ed. 369 . . .; Blumenthal v. Board of Medical Examiners (1962) 57 Cal.2d 228, 233, 18 Cal.Rptr. 501, 368 P.2d 101 . . .; see also Developments in the Law--Equal Protection (1969) 82 Harv.L.Rev. 1065, 1077--1087.)' (Id. at p. 17, 112 Cal.Rptr. at p. 798, 520 P.2d at p. 22.)

The classification established by former section 17158 following invalidation of the guest provision of that statute in Brown v. Merlo, supra, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (and the classification established by present § 17158--see fn. 1, Ante), distinguishes between passengers who are not owners of the vehicle in which they are riding and passengers who are owners; whereas the former class of passengers may recover against the driver of the vehicle for injuries or death sustained due to simple negligence on his part, the latter class may not recover unless the injuries or death result from the intoxication or willful misconduct of the driver. The issue before us is therefore this: Have plaintiffs borne the burden of establishing that this classification bears no rational relationship to any conceivable legitimate state purpose? ² In Patton v. La Bree (1963) 60 Cal.2d 606, 35 Cal.Rptr. 622, 387 P.2d 398, we were faced with essentially the same question. There it was contended that former section 17158 was invalid insofar as it denied recovery to all owner passengers, whether they gave compensation for the ride or not, while permitting recovery to nonowner passengers who had given compensation. Rejecting this contention, we stated: 'It cannot be said that the classification made by the Legislature in the 1961 amendment to section 17158 (adding the owner provision) is arbitrary or that no set of facts reasonably can be conceived that would sustain it. The relationship between a driver and the owner of the car who is a passenger is obviously different from that existing between a driver and a passenger who is not an owner. In making the distinction between owner-passengers and nonowner-passengers, the Legislature may have taken into consideration the fact that an owner generally has the right to direct and control the driver, but a nonowner ordinarily does not have that right.' (60 Cal.2d at p. 609, 35 Cal.Rptr. at p. 624, 387 P.2d at p. 400.)

It is here contended, however, that the 'fact' upon which our Patton reasoning was premised--i.e., 'that an owner generally has the right to direct and control the driver, (while) a nonowner generally does not have that right'--is illusory. It is urged that under modern traffic conditions accidents occur with such suddenness that there is no realistic opportunity for intercession by a passenger, whether he be the owner or not. Moreover, it is pointed out, when such an opportunity does exist, verbal warning or command is often ineffective and attempts at physical acquisition of control tend to increase rather than diminish the chances of calamity.

These arguments simply miss the point of our Patton decision. The owner's Right to direct and control the driver when he allows another to drive his car and himself rides as a passenger distinguishes him from the nonowner-passenger not in terms of his Ability to exercise effective control ³ but in terms of his Standing to seek recovery for injuries which he sustains due to the ordinary negligence of the driver which he has selected. Thus, the thrust of our Patton holding is this: The Legislature might reasonably have concluded that the owner of an automobile who, rather than driving himself, selects another and allows him to drive, subject to the owner's right to direct and control such driving, should not be permitted to recover when the ordinary negligence ⁴ of that driver results in injury to the owner.

The rationality and cogency of this determination is best considered in the context of the 1973 reenactment of former section 17158. ⁵ When this court, in February of 1973, held in the Brown case that the guest portion of former section 17158 was offensive to the equal protection guarantees of the state and federal Constitutions, the Legislature found itself called upon to make a determination whether the owner portion of the statute was subject to the same constitutional objection and should be repealed along with the guest portion. Guidance in making this determination was afforded the lawmakers in one of the closing paragraphs of our Brown opinion, where we stated: 'Nothing we have said is intended to imply that only the common law rules of negligence can govern automobile liability. We hold only that In undertaking any alteration or reform of such rules the Legislature may not irrationally single out one class of individuals for discriminatory treatment.' (8 Cal.3d at p. 882, 106 Cal.Rptr. at p. 407, 506 P.2d at p. 231; italics added.) Addressing itself to the owner provision with this standard in mind, the Legislature promptly reenacted it as new section 17158. Although here, as in the case of the 1961 statute, legislative history is scant with respect to the actual thinking of the lawmakers, ⁶ it is not difficult to reconstruct the probable course of their...