Opinion
8-25-1950
STONE et al. v. YELLOW CAB CO. OF CALIFORNIA. Civ. 17317.
Morris Lavine, Los Angeles, for appellants. James L. Ronnow and Harry B. Ellison, Los Angeles, Glenn R. Seavey, Los Angeles, of counsel, for respondent.
STONE et al.
v.
YELLOW CAB CO. OF CALIFORNIA.
Aug. 25, 1950.
Hearing Granted Oct. 23, 1950.
Morris Lavine, Los Angeles, for appellants.
James L. Ronnow and Harry B. Ellison, Los Angeles, Glenn R. Seavey, Los Angeles, of counsel, for respondent.
DRAPEAU, Justice.
The minor plaintiff, Acquanetta Stone, was injured when defendant's taxicab in which she was a passenger made a sudden stop on Wilshire Boulevard near LaBrea in the City of Los Angeles. Her mother, Jewel Stone, individually, and as guardian ad litem for the child, instituted this action to recover damages for such alleged injuries.
The cause was tried with a jury which brought in a verdict for defendant. Plaintiffs appeal from the judgment based thereon and from the order denying their motion for a new trial.
It appears from the record that about two o'clock in the afternoon of July 12, 1947, Mrs. Stone accompanied by her 3 1/2 year-old child and a woman friend (since deceased) boarded defendant's cab at Wilshire and LaCienega. The child entered first and sat directly behind the driver, with the friend in the middle and Mrs. Stone on the right. The latter was feeling ill and so advised the driver. The cab proceeded easterly on Wilshire Boulevard in heavy traffic which was controlled by automatic light signals.
Mrs. Stone testified that the driver 'would just barely make the signal. We would get it on the light. * * * We were going from one lane to the other and we were passing cars.' And had to stop from time to time. Just before they reached LaBrea, the driver 'threw the brakes on * * *. We were all thrown forward. * * * My child went out of the seat and her head hit the seat that turns up in back. Then she slumped down. * * * I reached and picked my child up. * * * She had a cut over the eye * * *. She came to and started to cry. The blood was all over my clothes. * * * She was semiconscious.'
They proceeded easterly to a medical center at Wilshire and Muirfield. The driver stopped and gave Mrs. Stone his handkerchief to 'catch part of the blood' ran around the cab and said 'You are ill. Let me carry the child.'
Mrs. Stone also testified that the speed of the cab at the time of the accident was 45 miles per hour; that just before it occurred the driver 'ran one red light and he caught two signals on the change.'
On cross-examination, she stated that as the cab traveled in the middle lane about half a block west of LaBrea, she observed a car ahead stopped at the signal; that she 'looked up and saw the red light and saw the car in front of us and I knew we were going to have an accident * * * because of the rate of speed we were traveling'; that the driver 'threw the brakes on and made a sudden stop'; that her child was leaning against the back of the seat with her feet straight out and all three passengers were thrown out of the seat.
The witness, Mrs. Diamond, stated that at the time in question she was riding in an automobile proceeding easterly on Wilshire within five blocks of LaBrea; that she observed a Yellow cab go 'through a red light as he passed us. We stopped at the red light and he went through'; that later the car in which she was riding caught up with the taxi; that she glanced into the cab and saw the injured child; that her car stopped near the medical center where she saw the cab driver carrying the child into the medical building.
The driver of the Yellow cab here involved testified that at the time of the accident he was traveling twenty or twenty-five miles per hour easterly 'on Wilshire Boulevard in very heavy traffic. I stopped at stop and go signs and continued behind a car to LaBrea, and applied the brakes and the child went forward'; that when he first applied his brakes to make the stop at LaBrea, he was twenty-five or thirty feet behind the car ahead of him; was then going about twenty miles per hour, and stopped in ten feet. That when the sign changed to 'go' he proceeded to a medical center about twelve blocks east of LaBrea; that when he carried the child into the doctor's office she was bleeding over the left eye, but was conscious and crying.
Dr Yonchar testified that the minor plaintiff was brought to his office about three o'clock in the afternoon of July 12, 1947, suffering from a straight-line laceration in the area of the left brow extending slightly beyond the hair margin; that the laceration was sutured 'using two deep sutures and two superficial sutures'; that the child was given a general anesthetic and remained in his office for about three hours. A subsequent examination of the child showed a normal recovery insofar as the cut over the eye was concerned.
There is also evidence to the effect that after the accident the minor plaintiff would arouse from sleep crying aloud and apparently terror stricken; that she complained of headaches and pain around the eye; that her appetite was disturbed; and that she had a fear of intersections, of yellow taxicabs and of the color yellow.
Dr. Sonneland, a neuropsychiatrist who examined her, testified that in his opinion the child was suffering from a traumatic of fright neurosis which might continue indefinitely; that she would require observation and treatment twice a week for eighteen months to free her from these obsessions.
Appellants predicate prejudicial error upon the following inquiry during the cross-examination of Mrs. Stone over the objection of their counsel:
'By Mr. Ellison: Q. Where do you live? A. Now?
'Q. Yes. A. 731 South Crenshaw.
'Q. And what is your business or occupation? A. Manager of a private school and teaching.
'Q. Are you married? A. Yes.
'Q. What is your husband's name? A. William Stone.
'Q. Are you living with him? A. No.
'Q. Are you divorced? A. No.
'Q. Is he alive? A. Yes.
'Q. Does he live here in Los Angeles? A. No.
'Q. Where does he live?
'Mr. Lavine: Object to that as incompetent, irrelevant and immaterial.
'The Court: Cross examination.
'Mr. Lavine: Nothing asked about it on direct examination.
'Mr. Ellison: Section 376 vests in the father
'The Court: She is a minor.
'Mr. Lavine: Only one guardian ad litem appointed.
'The Court: May be both involved. Objection overruled.
'Q. By Mr. Ellison: Where does your husband live? A. My husband is in San Quentin.
'Q. Then you are separated from your husband, is that right?
'(Witness cries.) The Court: Don't show any emotion.
'Mr. Ellison: Do you want to stop for a few minutes? (Mr. Lavine gives witness a drink of water.)
'Q. By Mr. Ellison: Are you feeling better now or do you want to take a little recess. A. I am all right.
'Q. I want to ask you a few questions. Don't want to embarrass you. A. I am all right.
'Q. All right. Where were you living at the time of this accident in July, 1947?
A. July 12, 1947 I was living at 921 North Central, El Monte.
'Q. Were you living with your husband at that time? A. No.'
It is here urged that the prejudicial effect of such inquiry constituted a denial of the fair trial guaranteed by the state and federal constitutions.
Respondent argues that since Mrs. Stone sued 'in her capacity as mother of the child as well as guardian ad litem' the questions asked were justified under section 376 of the Code of Civil Procedure, which at that time provided:
'A father of a minor, or if the father is dead or the parents of said minor are living separate or apart and the mother of the minor then has care or custody of said minor, then the mother, may maintain an action for the injury or death of said minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury, or death, or if such person be employed by another person who is responsible for his conduct, also against such other person.'
Here the action was prosecuted in the name of the injured child, and as held in Hughes v. Quackenbush, 1 Cal.App.2d 349, 362, 37 P.2d 99, 105: 'It is elementary that, when a minor is a party to an action, he must appear either by his general guardian or by a guardian ad litem appointed by the court for that purpose. Code Civ.Proc. sec. 372.'
Section 373 of the Code of Civil Procedure details the procedure for appointment of guardians ad litem, to-wit: '1. When the infant is plaintiff the appointment must be made before the summons is issued, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of a relative or friend of the infant.' The foregoing makes no mention as to which relative shall be given preference in such appointment, but the order of right to appointment of general guardian outlined in sections 1407 and 1408 of the Probate Code, gives priority to 'a parent' and 'if the child is of tender years, it should be given to the mother'.
The complaint herein alleges that 'Jewel Stone has been appointed guardian ad litem of Acquanetta Stone, a minor, for the purposes of this action.' Said allegation is admitted by the answer.
Section 376, Code of Civ.Proc., hereinbefore quoted, gives a right of action to the father, or under certain conditions to the mother, for injuries sustained by a minor child. It also gives a right of action to a guardian for the injury or death of his ward.
Said section clearly contemplates that such action may be maintained by a parent or by the child through his guardian. In this connection see Witkin's Summary of California Law, Vol. 1, page 700, sec. 133:
'Personal Injury to Child. (a) Action by parent. The parent entitled to the services of the child (i. e., usually the father) has a cause of action for injuries to the child. He may recover (1) the value of the child's services during the period of minority, and (2) the expenses of medical care. C.C.P. § 376; Bauman v. San Francisco, 1940, 42 Cal.App.2d 144, 160, 108 P.2d 989; Edgar v. Citraro, 1931, 112 Cal.App. 183, 297 P. 653; Finnerty v. Cummings, 1933, 132 Cal.App. 48, 22 P.2d 37; Durkee v. C. P. R. R. Co., 1880, 56 Cal. 388, 38 Am.Rep. 59; 6 So.Cal.L.Rev. 170; Rest., Torts, sec. 703. (b) Action by Child. The child, unless emancipated, has a cause of action only for 'general damages' for physical and mental suffering, and for future loss of earning power after majority. See Rest., Torts, sec. 703, Comment h. However, it has been held that where the parent sues as guardian ad litem of the child, recovery may be had for loss of earnings or services and medical expenses, on the theory that the parent is thus giving the right to the child. Bauman v. San Francisco, 1940, 42 Cal.App.2d 144, 160, 108 P.2d 989; McManus v. Arnold Taxi Corp., 1927, 82 Cal.App. 215, 223, 255 P. 755; Girard v. Irvine, 1929, 97 Cal.App. 377, 386, 275 P. 840.'
When a guardian ad litem is appointed and brings an action in the name of the ward, it must be assumed that the guardian has qualified as such. Consequently, any preference given to the father of the minor under section 376, supra, can have no further application to the situation. As was stated in Doyle v. Loyd, 45 Cal.App.2d 493, 497, 114 P.2d 398, 400: 'The statutes regarding the appointment of guardians ad litem were enacted for the purpose of protecting the minors and not for the purpose of precluding them from their legal rights.'
Also, the mother here as guardian is not a party to the action. Ocean Acc. & Guar. Corp. v. Industrial Acc. Comm., 88 Cal.App. 369, 372, 263 P. 823; O'Shea v. Wilkinson, 95 Cal. 454, 456, 30 P. 588. 'The court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court. Cole v. Superior Court, 63 Cal. 86, 89, 49 Am.Rep. 78. In such a case it will be presumed that the court will look to the best interests of the child and will render a decree that will establish and preserve her rights.' Serway v. Galentine, 75 Cal.App.2d 86, 89, 170 P.2d 32, 34.
It follows that the inquiry in the presence of the jury as to the whereabouts of the father was completely irrelevant and out of place. Appellants' objection thereto should have been sustained. There is little doubt that this immaterial but harmful evidence created such a prejudice in the minds of the jurors that they failed to fully consider the material issues presented for their determination, i. e., (1) negligence of the taxicab driver, and (2) the extent of the injuries sustained by the little girl. In the words of appellants' opening brief: 'Unquestionably the asking of this question and the answer to the question was a controlling factor in bringing about a verdict which otherwise never would have been rendered.'
Any question regarding the impropriety of the joinder of the mother in her individual capacity was waived by respondent when it was not objected to by special demurrer or answer. Barnett v. Garrison, 93 Cal.App.2d 553, 557, 209 P.2d 426, citing House v. Pacific Greyhound Lines, 35 Cal.App.2d 336, 343, 95 P.2d 465.
In addition to the contention that the evidence established negligence of the taxicab driver as a matter of law, there are several claims of error in connection with (1) the admission and exclusion of evidence; (2) instructions given and refused; (3) conduct of the trial. Since these errors may not again arise upon retrial, it would serve no useful purpose of pass upon them at this time.
The attempted appeal from the order denying the motion for a new trial is dismissed for the reason that such an order is reviewable upon an appeal from the judgment. The judgment is reversed and the cause is remanded for a new trial.
WHITE, P. J., and DORAN, J., concur.