Opinion
Page __
__ Cal.App.2d __ 343 P.2d 422 Charles LEHMUTH, Jr., as general guardian of the person and estate of Virginia Ann Lehmuth, an incompetent, Charles Lehmuth, Jr., and Kathryn Lehmuth, Plaintiffs and Respondents, v. LONG BEACH UNIFIED SCHOOL DISTRICT et al., Defendants. Long Beach Unified School District, Appellant. Marcel V. NARET, a Minor by his Guardian ad litem, Peter Charles Naret; and Peter Charles Naret, Plaintiffs and Respondents, v. LONG BEACH UNIFIED SCHOOL DISTRICT et al., Defendants. Long Beach Unified School District, Appellant. Civ. 23313, 23314. California Court of Appeals, Second District, Second Division Aug. 13, 1959Hearing Granted Oct. 7, 1959.
[343 P.2d 424] Moss, Lyon & Dunn, Los Angeles, C. Ransom Samuelson, Long Beach, Harold W. Kennedy, County Counsel, Lloyd S. Davis, Deputy County Counsel, Edwin P.
[343 P.2d 425] Martin, Deputy County Counsel, Los Angeles, for appellant.
Joseph A. Bell, James J. Baker and Alfred D. Williams, Long Beach, for respondents Lehmuth.
Madden & McCarry, Thomas F. McCarry, Long Beach, for respondents Naret.
ASHBURN, Justice.
These personal injury actions were consolidated for trial and are presented here upon a single record and a single set of briefs. Plaintiffs Virginia Ann Lehmuth and Marcel v. Naret, Junior College students, were looking into a photographer's window on the evening of November 10, 1955, when a sound truck, which was being towed behind an automobile driven by defendant Gordon J. Gearhart, broke loose, jumped the curb, overturned and crushed Virginia beneath it, also injured the plaintiff Naret. A verdict in favor of Naret was for $10,178 and was reduced on motion for new trial to $5,178. Plaintiff Lehmuth recovered $277,844, which sum was not reduced. So tragic were her injuries that appellant Long Beach Unified School District does not claim excessive damages, though it inveighs against the manner in which the verdict was obtained.
Plaintiffs sued said school district, the Associated Student Body of Long Beach City College and said Gearhart. The jury returned verdicts in favor of Gearhart and the Associated Student Body, while assessing damages against the school district in each case. Plaintiffs' motions for new trial as to said defendants Gearhart and Associated Student Body were granted. Respondent says the action is still pending in the Superior Court as to them. Defendant district's motion for new trial was denied. In each case said district appeals from the judgment and from an order denying its motion for judgment notwithstanding the verdict.
As the school district is the only appellant, the terms 'defendant' and 'appellant' will refer to it unless otherwise indicated. Lehmuth having filed the only respondent's brief (in which Naret joins), the words 'plaintiff' and 'respondent' will indicate said Lehmuth unless specified otherwise.
One of defendant's principal points on appeal is that the verdict was inconsistent because it held the district liable derivatively and exonerated the driver of the truck who was the prime actor. Gearhart was a student in the city college and was employed and paid by the Associated Student Body; the trailer which did the damage was purchased with funds of the student body but registered in the name of the city college. An understanding of these cases depends upon an appreciation of the relationship of the school district, city college and student body to each other.
Long Beach Unified School District was organized as such (see Educ.Code,§§ 4621, 4627, 4629) and within its territorial confines was established Long Beach City College. The complaint alleges: 'That at all times herein mentioned Long Beach City College was and is a public junior college owned, controled and operated by the defendant, Long Beach Unified School District.' This averment stands admitted by the answer of the district. The Education Code says: 'The secondary schools of the State are designated as high school, technical schools, and junior colleges.' § 8702. Section 4232 provides for establishment of junior colleges, and § 4365 says: 'A junior college district formed to comprise a single unified school district shall be considered a junior college district only for the purposes of State apportionments and nonresident county junior college tuition. For all other purposes it shall be considered an integral part of the unified school district and shall be governed by the governing board of the unified school district.' Section 4381 gives the superintendent of schools of the county in which junior colleges are located jurisdiction over all matters in which his office is concerned. Section 4627 says: 'The governing board of each unified school district shall have the same powers and duties as are by law granted to the governing [343 P.2d 426] boards of the elementary school districts, the high school districts, and the junior college districts merged into, or otherwise included within the unified school district.' The evidence shows that the Long Beach City College was staffed by a faculty and other functionaries who were employees of the school district and that a single Board of Trustees governed both the district and the city college. Student bodies are authorized by §§ 16141 and 16142, the former of which says: 'The governing board of any school district may authorize any organization composed entirely of pupils attending the schools of the district to maintain such activities as may be approved by the governing board.' And the latter: 'Any group of students may organize a student body association within the public schools with the approval and subject to the control and regulation of the governing board of the school district. Any such organization shall have as its purpose the conduct of activities on behalf of the students approved by the school authorities and not in conflict with the authority and responsibility of the public school officials. Any student body organization may be granted the use of school premises and properties without charge subject to such regulations as may be established by the governing board of the school district.' It is to be noted that the activities of student bodies must be approved by the school board and that they are 'subject to the control and regulation of the governing board of the school district.' The board of the unified district thus became the governing body of the city college and its student body, as well as the elementary and high schools.
It is not claimed by either side that Gearhart was an agent or employee of the school district. Appellant argues, in effect, that the liability of the district for acts of Gearhart, the driver of the automobile, was derivative or secondary, and that the exoneration of the prime actor automatically works the same result for persons secondarily liable. The rule is well settled to this effect in agency situations; in an action against principal and agent for negligence a verdict in favor of the agent effects exoneration of the principal also. Bradley v. Rosenthal, 154 Cal. 420, 423, 97 P. 875, 876: 'The employé's responsibility is primary. He is responsible because he committed the wrongful or negligent act. The employer's responsibility is secondary, in the sense that he has committed no moral wrong, but under the law is held accountable for his agent's conduct. While both may be sued in a single action, a verdict exonerating the agent, must necessarily exonerate the principal, since the verdict exonerating the agent is a declaration that he has committed no wrong, and the principal cannot be responsible for the agent if the agent has committed no tort. While no right of contribution exists between joint tort-feasors, whether sued separately or collectively, there exists in the kind of case here presented, much more than the mere right of contribution. The principal who has been obliged thus to pay for the unauthorized negligent act of his agent resulting in injury may indemnify himself to the full amount against his agent.'
This principle was given striking application in Bishop v. Superior Court, 59 Cal.App. 46, 209 P. 1012. David Evans sold certain property through Grant McCartney, a real estate agent. An action for damages for fraud was brought against them and judgment went for plaintiff against both, based upon representations made by the agent, the principal being entirely guiltless in the premises. Evans made no motion for new trial but McCartney did so and the motion was granted. Thereupon, Evans sought vacation of the judgment against him and his motion was granted. The plaintiff, Bishop, then applied for a writ of mandate to compel issuance of a writ of execution against the property of Evans. The writ was denied, the court saying, 59 Cal. at page 49, 209 P. at page 1013: 'It is too plain to require extended discussion that the liability of the principal in this case is entirely dependent upon that of the [343 P.2d 427] agent. If it be held that such findings and judgment were not supported by the evidence, surely there can be no basis for liability upon the part of the principal. An exoneration of the agent must exonerate the principal, since the only wrong found to have been done by the principal was through the agent.' See, also, Plott v. York, 33 Cal.App.2d 460, 464, 91 P.2d 924; 2 Cal.Jur.2d§ 158, p. 853.
Appellant argues that this principle extends to any case in which the liability of one party is derivative and the prime actor is exonerated. So it does. The question often arises in the field of res judicata and the application of the principle has the same effect as the Bishop decision, supra. Appellant cites Triano v. F. E. Booth & Co., Inc., 120 Cal.App. 345, 8 P.2d 174, and Barrabee v. Crescenta Mutual Water Co., 88 Cal.App.2d 192, 198 P.2d 558.
In Triano, a negligence action against Booth Company resulted in a final judgment in its favor. Plaintiff then brought a new action against the company and its stockholders. It was held that any stockholders' liability was derivative; that the situation was analogous to that of principal and agent and the exoneration of the principal actor effected res judicata in favor of persons secondarily liable. In Barrabee, supra, an independent contractor had been employed by Crescenta Mutual Water Company to drill a water well in its property; the contractor's operations caused a slippery street and an automobile accident. In an action brought against the contractor judgment went in its favor. Suit was then brought against both the water company and the contractor. The former judgment was held to be res judicata, the court saying, 88 Cal.App.2d at page 195, 198 P.2d at page 560: 'Generally the principle of res judicata applies only between parties to the original judgment or their privies. But in a tort action lack of privity in the former action does not prevent an estoppel where defendant's liability is predicated upon the culpability of another who was the immediate actor and who was exonerated in an action against him by the same plaintiff for the same act. [Citations.] The situation is analogous to that of principal and agent.' To the same effect, see 50 C.J.S. Judgments § 757, p. 277; Id. § 760, p. 286; Id. § 765, p. 294; Christianson v. Hager, 242 Minn. 41, 64 N.W.2d 35; Gerritsen v. City of Seattle, 164 Wash. 459, 2 P.2d 1092; Portland Gold Mining Co. v. Stratton's Independence, 8 Cir., 158 F. 63, 68-69, 16 L.R.A.,N.S., 677; Brobston v. Burgess and Town Council of Borough of Darby, 290 Pa. 331, 138 A. 849, 851-852, 54 A.L.R. 1285; Sawyer v. City of Norfolk, 136 Va. 66, 116 S.E. 245, 246; Town of Waynesboro v. Wiseman, 163 Va. 778, 177 S.E. 224, 226; Eissing Chemical Co. v. People's Nat. Bank, 205 A.D. 89, 199 N.Y.S. 342, 344-346; E. I. Du Pont de Nemours & Co. v. Richmond Guano Co., 4 Cir., 297 F. 580, 582.
Respondent counters this argument of appellant with these statements: 'The initial contention presented by appellant is that a school district is not liable for the negligence of students who are attempting to carry out a teacher's request. We concede. The case was not tried upon that theory.' Also: 'The school district has no liability which is derivative from or dependent upon Gearhart's acts. The school district is not liable for the negligence of a student under the doctrine of respondeat superior and the jury was so instructed. The liability of the school district is separate from that of Gearhart. It arises from a separate set of facts.' The claim is that there was independent negligence of the school district which operated as a proximate cause of the accident. That negligence consisted, so it is asserted, in failure to supervise those students--Gearhart and Leibowitz--who connected the sound trailer to the automobile on the occasion in question. Section 701(e), Vehicle Code, provides: 'Every towed vehicle shall be coupled to the towing vehicle by means of a safety chain, chains, cables or equivalent devices in addition to the regular trailer hitch or coupling. * * * [343 P.2d 428] No more slack shall be left in safety chains, cables, or equivalent device than shall be necessary to permit proper turning and the safety chains, cables or equivalent device shall be so connected to the towed and towing vehicle and to the drawbar to prevent the drawbar from dropping to the ground if the drawbar fails and shall be of sufficient strength to control the trailer in event of failure of the regular trailer hitch or coupling.' Obviously this is intended for the protection of the public,--to prevent just such occurrences as gave rise to the present actions.
A school district has the duty of reasonable supervision of its pupils while upon the school grounds, and this duty sometimes takes in a larger area. The measure of care is defined in Pirkle v. Oakdale Union, etc., School Dist., 40 Cal.2d 207, 210, 253 P.2d 1, 3: 'The standard of care required of an officer or employee of a public school is that which a person of ordinary prudence, charged with his duties, would exercise under the same circumstances.'
Section 1007, Education Code, provides: 'The governing board of any school district is liable as such in the name of the district for any judgment against the district on account of injury to person or property arising because of the negligence of the district, or its officers, or employees in any case where a verified claim for damages has been presented * * *.' This liability is not limited to occurrences upon the school grounds. See Grover v. San Mateo Junior College Dist., 146 Cal.App.2d 86, 91, 303 P.2d 602; Hanson v. Reedley, etc., School Dist., 43 Cal.App.2d 643, 647, 111 P.2d 415; Satariano v. Sleight, 54 Cal.App.2d 278, 283, 129 P.2d 35; Foster v. Einer, 69 Cal.App.2d 341, 345, 347, 158 P.2d 978; Annotation 160 A.L.R. 7, 157. Nor is it confined to injuries to pupils. Section 1007 stems from the sections mentioned in the following quotation: 'Section 1623 of the Political Code was re-enacted in 1931 into sections 2.800 to 2.806, inclusive, of the School Code with an important change in language. The old section restricted liability to 'a pupil'. The new section enlarged this to liability for injury 'to person or property' without the former limitation. This would seem to extend the liability to all damages to person or property caused by ordinary negligence of the district, its officers or employees, acting within the scope of their office or employment.' Bates v. Escondido Union High School Dist., 133 Cal.App. 725, 730, 24 P.2d 884, 886. Section 1007 is in pari materia with § 400 of the Vehicle Code, which imposes upon school districts, as well as other public agencies, liability for injuries caused by negligent operation of any motor vehicle by an officer, agent or employee. Of course, operation of a defective vehicle, one known or which should have been known to be such, falls within the category of negligent operation. Cf. Peerless Laundry Services v. City of Los Angeles, 109 Cal.App.2d 703, 707, 241 P.2d 269; Hanson v. Reedley, etc., School Dist., supra, 43 Cal.App.2d 643, 650, 111 P.2d 415.
If a school district, through negligent supervision or other form of carelessness, places a defective and dangerous instrumentality in the hands of a student to be used upon the public streets and an accident happens by reason of the defects therein, the district is liable for the consequences. The Restatement of Judgments, after stating the rule of the Barrabee and similar cases, supra, says in Comment b of § 99, at pages 494 and 495: 'The rule stated in this Section does not apply if there is an independent basis of liability against the person responsible for the act of the tortfeasor or contract breaker. * * * Likewise, where a person negligently puts into the hands of another a dangerous instrument, a judgment in favor of the other by a person injured thereby does not necessarily bar an action against the supplier of the instrument.' To the same effect, see Howard v. Triangle Freight Lines, 109 Cal.App.2d 620, 624, 241 P.2d 35; Benson v. Southern Pacific Co., 177 Cal. 777, 780, 171 P. 948; Jensen v. Southern Pacific Co., [343 P.2d 429] 129 Cal.App.2d 67, 70, 276 P.2d 703; Barsoom v. City of Reedley, 38 Cal.App.2d 413, 420, 101 P.2d 743; McCullough v. Langer, 23 Cal.App.2d 510, 517, 73 P.2d 649.
Of course, the evidence must be viewed most favorably to respondent's contentions. Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550. Gearhart was employed as an assistant technician on the public address crew of the student body. Edward Leibowitz occupied the same status. Donald Schmidt was head technician. All three were students at the city college. The student body had arranged a Homecoming Parade upon the streets of Long Beach for the evening of November 10, 1955; this was arranged and the parade conducted under the supervision of faculty members of the city college who were employees of defendant school district. Schmidt was working elsewhere on November 10th and he directed Gearhart to handle the sound truck with the assistance of Leibowitz. It was to be taken to Buffum's store and there plugged into an electrical outlet so the floats could be announced as they passed by. Gearhart borrowed his uncle's automobile for use in towing the trailer, hitched the sound truck to it, using for that purpose a new hitch which had been furnished by the office of the Dean of Activities. Gearhart had worked with Schmidt on four previous occasions when this sound truck was towed upon a highway, and on November 10th he hitched it to the automobile in the same manner as had been done in those previous instances. No safety chain was used on November 10th or on previous occasions, as required by Vehicle Code, § 701(e). Gearhart had never seen one in the trailer or anywhere else, nor had he been told to use one; the subject had not been mentioned to him. He did not know that it was customary or necessary and had no information about the statutory provision. As the sound truck was being towed along Ocean Avenue on its way to Buffum's store, it hit a rough place in the street caused by some excavation work, broke loose, went over the curb into the photographer's window, injuring the plaintiffs. Gearhart and Leibowitz were not immediately aware that the trailer had broken loose.
Was the school district guilty of independent and proximate negligence? It is shown above that the city college and its student body were but agencies of the school board and subject to its management and control. The faculty and other members of the college staff were employees of the district, and the student body, though a separate entity in one sense, was supervised by them. Mr. Orian M. Landreth was Dean of Activities of the college, having supervision over all student activities outside the classroom, e. g., football, parades, etc. Such activities earned credits for the participating students, just as did their intellectual pursuits. Mr. George E. Dotson testified that he was Assistant Superintendent of Schools in charge of the city college, and '[t]he Long Beach Unified School District contains three districts, the elementary, the high school, and junior college. There is a single board of five members that control the activities.'
In his argument to the jury counsel for defendant district said: 'Plaintiffs put on testimony here for about three or four days relating to the supervision exercised by the school over the activity and conduct of students. It was designed to show the school district supervised their conduct and, of course, they do. Why it is necessary to prove it I have no idea because it is admittedly that is the law, the judge is going to tell you that is the law. * * * Of course, they supervise, so there was never any dispute to that. The question is how far must supervision reasonably go. How far does it have to carry it? * * * Now, getting back to the question of the duties to supervise, as I told you, we have never contended that the school district has no duty to supervise but the law says reasonable supervision. That doesn't go to all activities.' The argument was and is that the duty of supervision does not [343 P.2d 430] extend to the minutiae of student activities; that the manner of hitching a sound trailer to a towing car falls in that category and is too small a matter to require supervision by officers or employees of the district, such as members of the city college faculty or its administrative employees.
Defendant produced the testimony of former students who had done this towing work and who said that safety chains were used and were kept in the trailer; the head gardener of the college said they were hanging on the wall of the shack where the trailer was kept. But Schmidt, Gearhart and Leibowitz testified that they were not furnished with any chain, did not use one, never saw one and the subject was never mentioned to them. From this conflict the jury could have deduced the inference that the subject of safety chains was considered by school officials to be one worthy of their supervision and hence they furnished them to former members of the sound crew; that for some unknown reason the fall semester of 1955 took on a different aspect, the chains had disappeared and the subject was ignored by those in authority.
That the subject of safety chains was of sufficient importance to require specific supervision by the school authorities seems clear. The statutory requirement of their use was directed toward safety of the public. It commands use of safety chain or chains, cables or equivalent devices 'in addition to the regular trailer hitch or coupling' and that they be so connected and 'of sufficient strength to control the trailer in event of failure of the regular trailer hitch or coupling.' The school district (through the city college and its student body) owes a duty of supervising its students and their school activities wherever conducted. It owes a duty to guard them against their youthful impetuosity and lack of knowledge or judgment; when their school activities come in contact with those of the public, e. g., upon a public street, that duty of supervision extends in favor of members of the public. 'It is not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities in order to establish that their failure to provide additional safeguards constituted negligence. Their negligence is established if a reasonably prudent person would foresee that injuries of the same general type would be likely to happen in the absence of such safeguards.' Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 600, 110 P.2d 1044, 1048. One of defendant's normal activities is the furnishing to students for use upon the public highways of sound trucks which have no motive power and must be hitched to a towing vehicle. It owes a duty to the students immediately concerned and to the general public to send no defective and dangerous vehicle or combination of vehicles onto the public highways. When it sends a towing car and trailer upon such a mission without equipping them with the statutorily prescribed device of a safety chain it is presumptively negligent. And there is no excuse offered at bar except that appellant had no such duty. The jury was justified in finding the district guilty of independent negligence which operated as a proximate cause of the accident in question.
Grave error was committed, however, in the court's handling of the subject of whether Gearhart had a California driver's license. The complaint does not allege, nor was it claimed at the trial or here, that Gearhart was an incompetent driver. Plaintiff's attorney twice asked Gearhart when on the witness stand if he had a California driver's license on the occasion in question and, objections thereto having been sustained, he put the following question: 'Did any member of the faculty of Long Beach City College ever ask you between the dates you were hired on the sound crew and November 10, 1955, whether or not you had a license issued by the Division of Motor Vehicles of the State of California?' Objection having been overruled, Gearhart answered in the negative.
[343 P.2d 431] He was then asked: 'Did any member of the faculty or any of the secretaries to the members of the faculty of Long Beach City College ever ask you whether--ask you whether you had any license to drive a car issued by the state or any other state of the United States prior to November 10, 1955?' Objection being overruled, the witness said he did not remember. Dean Landreth later testified:
'Q. Do you recall ever having asked Donald Schmidt whether or not any of the members of the sound crew had driver's licenses? A. I am sure that I didn't ask that question, because I have never asked that question of any student to my knowledge.
'Q. But in particular with reference to the sound crew, the members of the sound crew in September and October of '55, did you ask that question? A. Not to my knowledge, no.
'Q. Did you ask that question of Donald Schmidt or Gordon Gearhart or Leibowitz?'
Defendant's objections to this line of testimony having been previously overruled it was not necessary to repeat them at this point (48 Cal.Jur.2d § 379, p. 383), but counsel immediately did so, citing Strandt v. Cannon, infra, 29 Cal.App.2d 509, 518, 85 P.2d 160, and Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303. The objection was again overruled and the witness in effect replied in the negative.
At plaintiff's request the court instructed the jury as follows: 'You are instructed that a non-resident minor between the ages of 16 and 21 years who comes into the State of California may operate a motor vehicle for a period of ten days immediately following the entry of such non-resident minor into California without obtaining an operator's or chauffeur's license from the Department of Motor Vehicles of this state. During such period of ten days said non-resident minor may drive on California highways. If said non-resident minor desires to drive a motor vehicle on the public highways after a period of ten days immediately following the entry of such non-resident minor into California, he must apply for a license and be examined in the manner provided by law by the Department of Motor Vehicles of the State of California. You are further instructed that it would not be an act of negligence on the part of said minor to drive motor vehicles on the public highways of California after said ten day period without a license. The Department of Motor Vehicles of the State of California has the duty to give an examination to all applicants for license to drive on California highways which examination includes a test of their ability to drive and a knowledge and understanding of the provisions of the vehicle code of the State of California governing the operation of vehicles on the highway.' (Emphasis added.) This instruction was immediately preceded and followed by instructions upon the duty of the school district and its teachers to supervise its students. The emphasized portion of the one we have quoted is the only part that could be pertinent and it would not be requested by a plaintiff except as a springboard for the rest of the instruction which plainly implies a duty on the appellant to investigate the subject and if advised that Gearhart had no license to act upon that information. The plain inference is that it was negligent of the district to fail to ascertain whether Gearhart had a license or to permit the Student Body to hire him if it was learned he had none. The instruction could have had no other purpose. The law is well settled that absence of a driver's license is no proof of negligence or of lack of competency as a driver, that it could not be a proximate cause of an accident, nor could knowledge of such want of a license be a causative factor.
In Crosby v. Martinez, 159 Cal.App.2d 534, 542, 324 P.2d 26, 31, it is said: 'There was no issue raised by the pleadings which would make the absence of a driver's license material or competent evidence. Absence of one is not evidence of negligence.
[343 P.2d 432] If plaintiff was negligent, that had no proximate relationship to her possession or non-possession of a license. If she was not negligent in fact, her failure to obtain a driver's license would not convert careful conduct into tortious absence of care. The applicable rule is succinctly stated in Strandt v. Cannon, 29 Cal.App.2d 509, 518, 85 P.2d 160: 'The weight of authority, as as see it, is that the operator's negligence is to be determined by the facts existing at the time of the accident, and whether the operator had a license to operate an automobile under the laws of this state is immaterial unless there is some causal relationship between the injuries and the failure to have a license or the violation of the statute in failing to have one.' This language was quoted with apparent approval in Armenta v. Churchill, 42 Cal.2d 448, 458, 267 P.2d 303. To the same effect are, Page v. Mayors, 191 Cal. 263, 264, 216 P. 31; Wysock v. Borchers Bros., 104 Cal.App.2d 571, 582-586, 232 P.2d 531, 29 A.L.R.2d 948; Corsetto v. Pacific Electric Ry., 136 Cal.App.2d 631, 635, 289 P.2d 116; People By and Through Department of Public Works v. J. P. Loubet Co., 147 Cal.App.2d 566, 570, 305 P.2d 651; 7 Cal.Jur.2d § 393, p. 305.' See, also, Bryant v. Tulare Ice Co., 125 Cal.App.2d 566, 569-570, 270 P.2d 880; Hunton v. Cal. Portland Cement Co., 50 Cal.App.2d 684, 690, 691, 123 P.2d 947; Arrelano v. Jorgensen, 52 Cal.App. 622, 624, 199 P. 855; Perry v. Simeone, 197 Cal. 132, 138, 239 P. 1056.
Wysock v. Borchers Bros., 104 Cal.App.2d 571, 582, 232 P.2d 531, 537, 29 A.L.R.2d 948:
'The nonpossession of an operator's or chauffeur's license is not of itself proof that a person is an incompetent or a careless driver. He may be exceedingly competent and careful but may have neglected for a few days or weeks to renew his license. It expires by limitation, Veh.Code, §§ 276, 277. Or, he may be a person of whom a license is not required, such as an officer or employee of the United States when operating a government vehicle on government business (§ 251), or a nonresident who has a license issued by his home state or country or whose home state or country does not require a license, during the period permitted and under the conditions prescribed by section 252.
'Indeed, the refusal, suspension, or revocation of a license does not necessarily token an administrative determination that the applicant or licensee is negligent or incompetent. There are quite a number of grounds other than negligence or incompetence, for such action.'
Respondent's reliance upon Owens v. Carmichael's U-Drive Autos, Inc., 116 Cal.App. 348, 2 P.2d 580, Moore v. Re, 131 Cal.App. 557, 22 P.2d 45, and Shifflette v. Walkup Drayage, etc., Co., 74 Cal.App.2d 903, 169 P.2d 996, is misplaced. As heretofore stated there is no allegation in the pleading, nor has there been any other claim that Gearhart was an incompetent driver. The Owens case, supra, has been distinguished (in Wysock v. Borchers Bros., supra, 104 Cal.App.2d at page 584, 232 P.2d at page 538, and Strandt v. Cannon, 29 Cal.App.2d 509, 514, 85 P.2d 160) upon the ground that the competency of the driver was directly in issue there and the fact of no license was actually known to the defendant; the allegation was that defendant negligently rented its automobile to an incompetent driver with knowledge of the fact. Strandt, supra, after discussing the Owens case, supra, says at page 515 of 29 Cal.App.2d, at page 163 of 85 P.2d: 'We do not believe this is sufficient authority for holding as a matter of law that evidence of the fact that the operator of an automobile is or is not licensed becomes material in all automobile damage actions, in determining the competency of the driver.'
Moore v. Re, supra, was also distinguished in the Wysock and Strandt cases, supra. In the former it is said, at page 581 of 104 Cal.App.2d, at page 537 of 232 P.2d: '[T]he court approved the admission of [343 P.2d 433] evidence that the driver of a truck did not possess an operator's license, upon the ground that such evidence 'was not admitted as a proximate cause of the injury, but was proper to be considered by the jury on the general question of negligence, and also as bearing on the ability and qualifications of the driver.' * * * The Moore case has been criticized in later decisions, though not expressly overruled, for allowing such evidence on the issue of negligent operation of a vehicle. That ruling was predicated upon the fact that an operator's license was no longer issued merely for identification purposes but was based upon an examination of the applicant to test his knowledge of traffic regulations and his ability to operate and control a motor vehicle. Our study of the licensing features of the Vehicle Code leads us to a different conclusion concerning the evidentiary value, in a negligence case, of the possession or nonpossession of a license.' Then follows the language above quoted from said case. No application for hearing was made in either the Owens or the Moore case.
In Shifflette v. Walkup Drayage, etc., Co., supra, the complaint alleged that defendant 'knew, or in the exercise of ordinary care should have known' that its truck driver was not competent nor licensed to operate a motor vehicle. 74 Cal.App.2d at page 907, 169 P.2d at page 998. The court said, 74 Cal.App.2d at page 909, 169 P.2d at page 998: 'The instruction in the instant case stated that 'the possession or lack of an operator's license is not evidence that defendant, Charles Hameister, was or was not generally a competent driver; nor is it evidence that he was or was not negligent on the occasion in question.'' At page 908 of 74 Cal.App.2d, at page 999 of 169 P.2d: 'The court instructed the jury that the evidence to the effect that the truck driver had no license was admitted only for the purpose of consideration in connection with all other evidence of the question of whether the owner knew or was put on inquiry to know that it was entrusting the operation of its truck to one who was not a competent driver. * * * For the reasons stated above we believe that the inclusion within the complaint of the allegation of knowledge and the proof offered to substantiate that allegation was sufficient to constitute a question of fact for the jury.' After reviewing this case, Wysock, supra, says at page 585 of 104 Cal.App.2d, at page 539 of 232 P.2d: 'In the instant case, there was under the pleadings no issue concerning the competency of the driver of the truck, nor the element of employment by appellants Borchers Bros. of a driver under circumstances which charged them with knowledge or notice that he might be incompetent. Respondent suggests that such an issue was presented by the complaint in the allegation that defendants 'carelessly managed and operated a truck.' We find in that allegation no such issue, nothing more than a charge of negligent conduct.'
Emphasis placed upon § 335, Vehicle Code, in Shifflette, supra, and other cases arising between private parties, is not pertinent here. Head v. Wilson, 36 Cal.App.2d 244, 253, 97 P.2d 509, holds that that section is not applicable to an action against a county because sovereign immunity had not been withdrawn with respect to a violation of that statute. This would, of course, be also true of a school district. The Head case, supra, says at page 253 of 36 Cal.App.2d, at page 514 of 97 P.2d: 'The appellant further complains of an instruction telling the jury that if it should find that the County of Orange had permitted Biggs to drive this ambulance when he did not have a driver's license, and if such fact was known or should have been known, 'then I instruct you that the defendant, County of Orange, was prima facie negligent in permitting the said [343 P.2d 434] Ernest S. Biggs to drive said automobile ambulance.' Over the objection of the appellant, counsel for the defendant Wilson was permitted to introduce certain evidence in an attempt to show that Biggs did not have a driver's license. * * * There is no evidence, therefore, to justify the giving of this instruction. A further consideration is that the matter was immaterial here in any event. At common law such a political subdivision of the state as a county was not liable for the negligence of its employees in the exercise of its governmental functions. It is well settled that an action can be maintained against such a branch of the government only where a right of action is given by statute. Pittam v. City of Riverside, 128 Cal.App. 57, 16 P.2d 768. Section 335 of the Vehicle Code, providing that no person shall knowingly permit another to drive his automobile unless the latter is duly licensed, gives no right of action against a county. If it be assumed that the appellant was negligent in permitting an unlicensed driver to drive this ambulance (see Owens v. Carmichael's U-Drive Autos, Inc., 116 Cal.App. 348, 2 P.2d 580; Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160) its liability in this case must be based entirely upon section 400 of the Vehicle Code, and upon 'the negligent operation of' this vehicle. The injection of this question as to whether or not Biggs had a license to drive was not only improper but may well have confused the issues, as understood by the jury.'
Veh.Code, § 335: 'No person shall knowingly permit or authorize the driving of a motor vehicle, owned by him or under his control, upon the highways by any person whether as operator or chauffeur unless such person is then duly licensed hereunder so to drive.'
It thus appears that evidence of lack of a driver's license or inquiry concerning it is competent only in those cases wherein a specific charge of employing an incompetent driver is made. In the case at bar there was no such issue and hence a false factor was injected into the case by questions concerning Gearhart's possession of a California license and, after an objection sustained thereto, by further questions designed to elicit the fact that no inquiries were made by or on behalf of the district to determine whether he had such a license. When the court gave at plaintiff's request the instruction under discussion, the implication arising from the questioning of counsel was emphasized in such manner that the jury could not fail to draw the inference that a duty of inquiry rested on defendant and that somehow it was negligent in failing to elicit a fact which could not be a proximate cause of the accident. The court in this instruction told the jury there was no negligence on Gearhart's part in driving without a license but ex industria spelled out an inference that it was negligence, proximate negligence, for the defendant to fail to discover a false factor in the problem. Counsel for respondent emphasized the point in oral argument from time to time.
We are of the opinion 'after an examination of the entire cause, including the evidence * * * that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error' and that there has been a miscarriage of justice here. People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243, 254.
Because of the necessity of a new trial and the probability that the same points may arise again (Code Civ.Proc. § 53), we discuss additional contentions of appellant.
It is contended that there was error in giving BAJI instruction number 147 to the effect that care required of any [343 P.2d 435] person under the age of 21 years is not to be judged by the standard applicable to an adult but by that degree of care which might reasonably have been expected from a child of like age, capacity and experience, under the same or similar circumstances. This was of course directed to the conduct of defendant Gearhart, not the plaintiff, for there was no claim of contributory negligence. The instruction correctly states the general rule (Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 139, 138 P. 712), and in this State the fact that the minor is defendant does not affect the matter where he is charged with negligence rather than battery or other wilfully tortious conduct. Singer v. Marx, 144 Cal.App.2d 637, 641, 301 P.2d 440; Ellis v. D'Angelo, 116 Cal.App.2d 310, 315, 253 P.2d 675; see also, Prosser on Law of Torts (2d Ed.), § 31 at Page 128. A minor's age alone, though it be 18 years, does not as matter of law establish maturity such as to impose upon him or her the standard of care applicable to an adult. Satariano v. Sleight, supra, 54 Cal.App.2d 278, 283, 129 P.2d 35, 38:
'A child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience. There is no precise age at which, as a matter of law, a child comes to be held accountable for his or her actions by the same standard as applies to an adult. It is for you to determine the mental capacity and experience of all persons under the age of 21 years involved in this action, and whether his, her or their conduct was or was not such as might reasonably have been expected from a child or children of like age, capacity and experience, under the same or similar circumstances.
'It is well settled that the amount of care due to minors increases with their immaturity and consequent heedlessness to danger. [Citations.] The boy in this case was nearing eighteen, but we should not close our eyes to the fact that even boys of seventeen and eighteen years of age, particularly in groups where the herd instinct and competitive spirit tend naturally to relax vigilance, are not accustomed to exercise the same amount of care for their own safety as persons of more mature years. In Guyer v. Sterling Laundry Co., 171 Cal. 761, at page 763, 154 P. 1057, the court had this to say of a nineteen-year-old girl at a time when under our law a woman reached her majority at eighteen:
"The time fixed by our law for attaining full legal majority * * * embodies a useful and indeed a necessary declaration of the law, since some time must be named when the individual will become entitled to the full rights of the adult and be charged with his full duties and responsibilities. But the law itself cannot change the facts of existence, and no one will argue that merely because a girl of 18 or a boy of 21 has attained legal majority they have thus and thereby been endowed with the care and discretion and judgment of full maturity. Physically, they may be fully mature. Mentally, a tremendous growth must take place, and usually does take place, before knowledge has ripened into wisdom, and wisdom coupled with experience has developed a sound and sane judgment. A girl of 19 is still in her youth. Youth is ever the time of heedlessness, of impulsiveness, and of forgetfulness. Lacking power of continuous application and concentration, it will, upon the other hand, center its thought for a brief time and to its peril upon one matter to the exclusion of all else.'
'We entrust the safety of our children to our public school authorities during school hours. They are bound to exercise an amount of care for their safety during that period commensurate with the immaturity of their charges and the importance of their trust.'
The cited cases of Finnegan v. Giffen, 89 Cal.App. 702, 265 P. 496; House v. Fry, 30 Cal.App. 157, 157 P. 500; Silver Swan Liquor Corp. v. Adams, 43 Cal.App.2d Supp. 851, 110 P.2d 1097, and Ridley v. Young, 64 Cal.App.2d 503, 149 P.2d 76, are not to the contrary. They recognize the principles above stated and apply them to their own peculiar facts. Authorities from other States, cited by appellant to the contrary, cannot be considered for the rule is firmly established in this State.
[343 P.2d 436] This instruction was given at the request of the student body which was conceded to be Gearhart's employer. The above authorities establish that there was no error in the giving of same. As plaintiff's cause of action against the district rested upon its independent negligence, the effect of this instruction upon Gearhart's liability is legally inconsequential so far as the district is concerned.
Appellant asserts prejudicial error in the court's overruling of its objections to a certain motion picture of plaintiff and the exhibiting of same to the jury. About four months after the accident this picture was taken at the hospital. Appellant describes it thus: 'Despite the fact that oral testimony had been given concerning the condition of Virginia Lehmuth while in the hospital, the existence and use of a tracheotomy (insertion of a tube in a slit in the trachea, the 'windpipe'), the existence and use of a Levin tube for feeding (tube through nostril into stomach), her unconscious flailing of arms and body, flinching, and other similar matter * * *, there was offered at the conclusion of plaintiffs' case in chief a motion picture film * * * taken of Virginia Lehmuth in the Seaside Hospital by Mr. Burgwin.' Counsel further say: 'No one can possibly view the motion picture films * * * without passion and prejudice being aroused. The showing was not essential. Testimony descriptive thereof had been introduced.' We have viewed this five minute film and have concluded that it added little, if anything, to the oral evidence of plaintiff's condition. The trial judge ruled that it was not inflammatory. We agree. The ruling was but the exercise of a permissible discretion. People v. Cheary, 48 Cal.2d 301, 312, 309 P.2d 431; People v. Carter, 48 Cal.2d 737, 751, 312 P.2d 665.
Appellant complains of failure to give its requested instruction concerning supervision and auditing of funds of the student body by the district board. The proposed instruction quotes § 16143, Education Code, which says: 'The governing board of any school district shall provide for the supervision and auditing of all funds raised by any student body or student organization using the name of the school.' Also, § 16144, which provides: 'The funds of any student body organization shall be deposited in a bank approved by the governing board of the school district and shall be expended subject to such procedure as may be established by the student body organization subject to the approval of an employee or official of the school district designated by the governing board.' The instruction proceeds to say that the duties thus imposed upon the school district 'are duties separate and apart from any other duties it may have * * * duties of a fiscal supervision as distinguished from duties which a district may have to supervise student activities and conduct.' Finally, the proposed instruction says: 'Accordingly, you are instructed that any evidence received in this case, tending to show supervision, auditing or other control of funds of the Associated Student Body is to be disregarded and is not to be used by you in determining the liability, if any, of the School District.'
Considerable evidence had been taken upon this subject and defendant had repeatedly objected, but we perceive no error in the refusal of this request. It would require the jury to ignore part of the district's statory duties of supervision of the student body. These sections, 16143 and 16144, are but specialized directions complementing § 16142, the opening sentence of which is: 'Any group of students may organize a student body association within the public schools with the approval and subject to the control and regulation of the governing board of the school district.'
For the first time on appeal defendant makes the point that the judgment runs in favor of Virginia Lehmuth's guardian rather than Virginia. The action was started in the name of Charles Lehmuth, Jr., as general guardian of the person and estate of Virginia. Later a written stipulation was made by all parties, including defendant district: [343 P.2d 437] 'That, plaintiffs may substitute for and in the place of the plaintiff, Charles Lehmuth, Jr., guardian for the person and estate of Virginia Ann Lehmuth, a minor, the plaintiff Charles Lehmuth, Jr., guardian for the person and the estate of Virginia Ann Lehmuth, an incompetent.' This was followed by order of court making said substitution. Thereupon a second amended complaint was filed in the name of Charles Lehmuth, Jr., as general guardian of the person and estate of Virginia Ann Lehmuth, an incompetent. Answer thereto was filed by the district, making no objection to the capacity of the guardian to maintain the action or to the style of the complaint. As above stated the point was not raised below. Of course, the real party in interest is Virginia, not her guardian, and the title of the case should have been molded accordingly, but appellant's objection does not go to the merits. Westphal v. Arnoux, 51 Cal.App. 532, 536, 537, 197 P. 395, 397, is apposite:
'This action was brought by Cora A. Westphal, as guardian of the estate and person of Agatha Lawrence. The point is now raised, and for the first time, that the suit should have been brought in the name of the minor, by her guardian. That the minor should have been named as the plaintiff cannot be questioned. [Citations.]
'But the record shows that neither in the pleadings nor in the evidence, nor in any part of the proceedings below, did the defendant make any objection in the behalf now stated, nor so much as allude to the error which it is now claimed is fatal to the judgment. We are well satisfied that this belated objection cannot now be interposed, for notwithstanding the defect in naming the guardian as plaintiff, the case was actually tried on the theory that the minor was the real party in interest and that it was the minor's title and interests that were being actually litigated. * * *
'This case, having been tried upon the theory that the pleadings were of such form and substance as to properly frame the the issues that were actually tried, comes well within the rule 'that where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objections here.' [Citations.]
'We construe the judgment to be in favor of Agatha Vivian Lawrence (known also as Agatha Lawrence), who was treated as, and who, for the purpose of giving effect to said judgment, must be held to be, the real plaintiff in the action.' See, also, Martin v. Pacific Southwest Royalties, 41 Cal.App.2d 161, 170, 106 P.2d 443.
Order denying motion for judgment notwithstanding the verdict in each case is affirmed; judgment in each case is reversed.
FOX, P. J., and HERNDON, J., concur.
'The rule just stated applies even when a child is charged with having violated a statute or an ordinance, or the evidence shows such a violation. The question whether or not the child was negligent still must be answered by the standard applicable to children as I have stated it to you.'