Schlake, R. J.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 36 | Issue 2 Article 3October 1959The Legal Status of the Juvenile Car PoolParticipantR. J. SchlakeFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion inChicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contactdginsberg@kentlaw.iit.edu.Recommended CitationR. J. Schlake, The Legal Status of the Juvenile Car Pool Participant, 36 Chi.-Kent L. Rev. 146 (1959).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol36/iss2/3NOTES AND COMMENTSTHE LEGAL STATUS OF THE JUVENILE CAR POOL PARTICIPANTThe exodus of urban dweller to Suburbia has generated a numberof novel problems, of which not the least of these is the matter of trans-portation. Mechanical carriage from domicile to food supply, to church, torail lines, and to school is mandatory in these trolleyless and tracklessareas. Given, that one-car families were once the rule, the exception nowsupersedes and the two-car family becomes commonplace. But, one mightask, "Is this actually the solution when coupled with and weighted as itis with the ever attendant note of chattel mortgage, license fees, garageproblem and automobile insurance policy ?" With the intent of modifyingthe harshness of the resultant economic burdens, the car pool was born. Itserves as a focus for this comment, to-wit: what legal consequences arelikely to be suffered by car pool participants as a result of their effortsto effect the most frugal means of transporting their children to and fromschool?A seemingly innocuous arrangement entered into by the parents ofcertain grade school children in Ohio, whereby five mothers alternated inthe transportation of their own and each other's children to and fromschool via private automobile, developed into one of considerable legalsignificance in the recent Ohio case of Lisner v. Faust.1 The plaintiff there,aged six years, was injured when the automobile in which he was beingtransported by one other than his mother left the road and struck a steelpost because of nothing more than simple negligence on the part of thedriver. The court of common pleas sustained a demurrer to the petition torecover damages. The court of appeals affirmed but granted plaintiff'smotion to certify the record. On further review, the Supreme Court ofOhio found that the plaintiff was not a "guest" within the purview of theOhio Guest Statute2 so it reversed the lower court holdings and returnedthe case for trial. At the time of so reversing, the court said: "Theseallegations [referring to the parental arrangement for transportation]• . . indicate a definite business relationship whereby each party thereto1168 Ohio St. 346, 155 N. E. (2d) 59 (1958).2 Page's Ohio Rev. Code 1953, § 4515.02, states: "The owner, operator, or personresponsible for the operation of a motor vehicle shall not be liable for loss ordamage arising from injuries to or death of a guest, resulting from the operationof said motor vehicle, while such guest is being transported without paymenttherefor in or upon said motor vehicle, unless, such injuries or death are causedby the wilful and wanton misconduct of such operator, owner, or person responsiblefor the operation of said motor vehicle."14(;NOTES AND COMMENTSwas saved time and expense in the task of transporting her child to andfrom school, and it seems to be a bit unrealistic to label such an allegeddefinite agreement in the category of a mere arrangement incidental topleasure, hospitality, or good will."3It is significant that the court did not touch upon the favored con-sideration which inures to infants of a tender age, particularly those underseven years,4 by virtue of which several jurisdictions resolve the status ofan infant rider on the theory that such a child has no capacity to "accept"a ride, the absence of any "payment" for the ride notwithstanding. Asmost of the children carried in the typical to-and-from school car pool arein the 5-13 year age group, there may be occasion to draw a distinctionbetween the several age levels.5 Aside from this, the question is still oneas to whether or not the juvenile participant in a school car pool is to betreated as a guest for liability purposes.The varied "guest" statute makes no special provision for infantsas such, with the exception of the one found in Florida which contains anexpress exclusion of "children being transported to-and-from school.''6Instead, the statutory definition of a guest appears to follow one of threepatterns, but with an occasional overlapping or combining of one or morepatterns. The largest group of state statutes defines a guest substantiallyas being "one who rides without payment for such transportation. "7 Thenext group in terms of size qualifies the application of the statute uponthe "acceptance" of a ride by a guest, either with or without giving com-pensation theref orA The balance of the statutes define a guest as being anypassenger or person riding in the vehicle "as a guest or by invitation andnot for hire,"9 with the exception of the Vermont statute which declares3 168 Ohio St. 346 at 349, 155 N. E. (2d) 59 at 62.4 Lagerstrom v. Jago, 316 Ill. App. 156, 44 N. E. (2d) 330 (1942); Brown v.Murray, 313 Ill. App. 144, 39 N. E. (2d) 83 (1942), involving a six-year old boy;Smith v. Tappen, 208 Ill. App. 433 (1917), a five-year old boy; and Johnson v. N. K.Fairbanks Co., 156 Ill. App. 381 (1910), where the child was four and one-halfyears of age. See also 4 I. L. P., Automobiles and Motor Vehicles, § 204, p. 398.5 The importance of this distinction is pointed out in an annotation appearing in16 A. L. R. (2d) 1304.6 Fla. Stat. Ann. 1949, § 320.59.7 Ala. Code 1940, Ch. 36, § 95; Ark. Stat. 1947, Ch. 75, § 915; Colo. Rev. Stat. 1953,Ch. 13, Art. 9, § 1; Del. Code Ann. 1953, Ch. 21, § 6101; Ida. Code 1947, Ch. 49,§1001; Ill. Rev. Stat. 1957, Vol. 2, Ch. 951, § 9-201; Burn's Ind. Stat. Ann. 1952, Ch.47, § 1021; Kan. Gen. Stat. 1957, Ch. 8, § 122B; Mich. Comp. Laws 1948, Ch. 256,§ 29; N. M. Stat. 1953, Ch. 64, § 24-1; Page's Ohio Rev. Code 1953, § 4515.02; Ore.Rev. Stat. 1958, § 30.110; S. Car. Code of Laws 1952, Ch. 46, § 801; S. Dak. Code1939, Ch. 44 § 0362; Vernon's Tex. Civ. Stat. 1948, Ch. 116, § 6701b; Va. Code 1950,Ch. 8, § 646.1; Wyo. Comp. Stat. Ann. 1945, Ch. 60, § 1201.8 West Cal. Ann. Code 1956, § 403; Neb. Rev. Stat. 1943, Ch. 39, § 740; Nev. Rev.Stat. 1957, Ch. 41, § 180; N. Dak. Rev. Code 1943, Ch. 39, § 1502; Utah Code Ann.1953, Ch. 41, § 9-1; Rev. Code Wash. 1951, Ch. 46, § 08.080.9 Iowa Code Ann. 1946, § 321.494; Mont. Rev. Code Ann. 1947, Ch. 32, § 1113.CHICAGO-KENT LAW REVIEWthat the owner or operator shall not be liable in damages for injuries re-ceived by any occupant unless the owner or operator has "received orcontracted to receive payment." 10The three phrases used in these statutory patterns, that is payment for,acceptance of, or invitation to take a ride, are with few exceptions far fromconclusive in harmonizing the decisions of the various jurisdictions in rela-tion to juvenile riders. For example, neither "accept" nor "invitation" isincluded in the Indiana statute, yet the Indiana Appellate Court decisionin the case of Fuller v. Thrun" stressed the lack of capacity, on the partof a six-year old girl, to accept a ride as being decisive on the questionof her "passenger" status. The court there said that it was of the opinionthat a child under the age of seven years was a person conclusively pre-sumed to be non sui juris, hence incapable in law of "accepting the appel-lant's invitation and hospitality." '12  Conversely, although the Californiastatute calls for no more than an "acceptance" of a ride, yet, according tothe case of Rocha v. Hulen,1 such an acceptance on the part of a childof tender years would not be significant unless authorized by the parentor guardian. In another California case, however, where infants agedfifteen and twenty-six months respectively were accompanied by theirmother, her acceptance was imputed to the children and her guest statusattached to them also.14While an Oregon court had earlier held that a four-year old childwho had entered an automobile with its mother could not be said to haveaccepted a ride because it did not do so of its own free will,15 the samecourt, adverting to the "imputed status" theory of California in an ap-parent effort to reconcile its holding with the California view, later decidedthat a twenty-nine month old child, when accompanied by her guest mother,was also to be considered as a guest. 16 By contrast, and apparently onthe ground that a twelve-year old child in the custody of her "passenger"mother had no option other than to accompany her mother because noone was at home to care for the child, the Supreme Court of Washington,in the case of Hart v. Hogan,17 appears to have considered such a childto be a passenger. Colorado also seems to adhere to this minority view-1o Vt. Stat. 1947, Ch. 434, § 10,223.11109 Ind. App. 407, 31 N. E. (2d) 670 (1941).12 109 Ind. App. 407 at 413, 31 N. E. (2d) 670 at 672.'3 6 Cal. App. (2d) 245, 44 P. (2d) 479 (1935), where a five-year old girl wastransported Without the express consent of her parents and the case was held to beexcluded from the guest statute.14 See Buckner v. Veterick, 124 Cal. App. (2d) 417, 269 P. (2d) 67 (1954).15 Kudrna v. Adamskl, 188 Ore. 396, 216 P. (2d) 262, 16 A. L. R. (2d) 1297 (1950).16 Welkern v. Sorenson, 209 Ore. 402, 306 P. (2d) 737 (1957).17 173 Wash. 598, 24 P. (2d) 99 (1933).NOTES AND COMMENTSpoint for it has recently decided that a two-year old child was to be deemedincapable of accepting a ride because of her tender years.1 sFollowing what would appear to be the majority view, the SupremeCourt of Iowa, in the case of Horst v. Holzen,"9 declared that a thirteen-day old infant in the company of its mother, notwithstanding its obviousincapacity to accept a ride, had to be treated as a guest. Even strongeris the statement of the Supreme Court of Kansas in a situation where aseven-year old had been transported without the express or implied con-sent of the parent. That court declared: "The weight of authority is thata minor as well as an adult can be a 'guest' even though unaccompaniedby a parent or guardian and even though no express consent of parentor guardian has been shown. "20 This interpretation of the Kansas statutewas followed by the Supreme Court of Missouri when it stated, by wayof dictum, that a child of tender years, being transported with the impliedconsent of its parents, had "accepted" an invitation to ride, hence couldbe considered as a guest.21  The Supreme Court of Arkansas, subscribingto the majority rule, commented on the status of a seven-year old boy whohad been injured while hitching a ride on the tail gate of a truck bysaying: "It will be observed that in defining a guest the statute makes noexception in favor of minors and we have no authority to write thatexception into the statute." '22  Mention might also be made of the factthat, in Linn v. Nored,23 the Texas Court of Civil Appeals responded toa contention that only a person sui juris could become a guest by pointingout that is "quite generally held that a minor plaintiff's tender years donot take the case out of the statute because the age does not affect thedegree of care required of the defendant, although it may affect the naturethereof. "24In none of the aforementioned cases was the minor being carried underany form of a car pool arrangement, so the instant case is novel in thatrespect. Nevertheless, the holding therein may have been foreshadowed byanother Ohio case where the Supreme Court of that state collaterally ex-pressed the idea that an infant of tender years could be a guest when itdiscussed the position of one who was mentally incapable of accepting an18 Green v. Jones, 136 Colo. 512, 319 P. (2d) 1083 (1957).19249 Iowa 958, 90 N. W. (2d) 41 (1958).20 Morgan v. Anderson, 149 Kan. 814 at 817, 89 P. (2d) 866 at 868 (1939). Seealso the case of In re Wright's Estate, 170 Kan..600, 228 P. (2d) 911 (1951), treat-ing a four-year old child as a guest.21 Wendel v. Shaw, 361 Mo. 416, 235 S. W. (2d) 266 (1950).22 Tilghman v. Rightor, 211 Ark. 299 at 232, 199 S. W. (2d) 943 at 945 (1947).23 133 S. W. (2d) 234 (Tex. Civ. App., 1939).24 133 S. W. (2d) 234 at 236.CHICAGO-KENT LAW REVIEWinvitation to ride in an automobile because of an advanced state of in-toxication.25Turning to the case law in Illinois and particularly to those caseswherein the term "guest" has been in any way defined, 26 it may be notedthat direct comment on the status of minors, whether of tender age orotherwise, is conspicuously absent. As a consequence, it may be said thatso far as Illinois is concerned the question is open to conjecture. It mightbe inferred, from the situation disclosed in the case of Johnson v. Chicago& North Western Railway Company,27 that an eight-year old boy couldcome within the terms of the Illinois statute,28 for the judgment theresustained on behalf of the infant plaintiff rested upon a wilful and wantoncount. But this is a negative inference at best for nothing was said thereinas to what the result would have been if only ordinary negligence hadbeen shown present. In the only other reported case anywhere near inpoint, that of Krantz v. Nichols, 29 a five-year old boy injured while ridingon a neighbor's farm tractor was said to be a licensee rather than an in-vitee, so the court was able to dispose of a problem concerning the appli-cability of the statute without deciding it. In fact, it said the applicationof the statute was "immaterial since our conclusion as to the minor'sstatus raises the same standard of proof of defendant's misconduct as thatrequired under the Guest Statute."8 0 One cannot then do more thanhazard a guess as to the law of Illinois on the point here concerned.Even supposing that a minor can effectively, either expressly or im-pliedly, consent to be a guest, there is still a question as to what wouldconstitute "payment" for the transportation provided to take the caseout of the statute. Absent any transfer of actual monetary consideration,the school ride cases can probably best be resolved by reference to theanalogous car pool cases concerned with the "share a ride" arrangementin going to and from work. There, at least, the decisions appear to benumerically in favor of applying a passenger status to the co-operating25 Lombard v. DeSchance, 167 Ohio St. 431, 149 N. E. (2d) 914 (1958).26 See the cases of Miller v. Miller, 395 Ill. 273, 69 N. E. (2d) 878 (1946)Connett v. Winget, 374 111. 531, 30 N. E. (2d) 3 (1940); Perrine v. Charles T.Bisch & Sons, 346 Ill. 321, 105 N. E. (2d) 543 (1952) ; and Dirksmeyer v. Barnes,2 Ill. App. (2d) 496, 119 N. E. (2d) 813 (1954). See also notes in 19 CHICAGO-KENTLAW REVIEW 281 and 1 John Marshall L. Q. 193.27 9 Ill. App. (2d) 340, 132 N. E. (2d) 678 (1956).28 Ill. Rev. Stat. 1957, Vol. 2, Ch. 95J, § 9-201.29 11 Ill. App. (2d) 37, 135 N. E. (2d) 816 (1956).30 11 Ill. App. (2d) 37 at 42, 135 N. E. (2d) 816 at 819., NOTES AND COMMENTSparties, 8' Illinois included, 32 with the few minority decisions being some-what weakened by the influence of wartime shortages and rationing.33 Itcertainly seems to be well established that the actual payment for theride need not originate from the injured party transported so, if thedriver receives payment or direct benefit from another, the transportationis not gratuitous and a guest relationship is excluded.3 4Since only a minority of the guest statutes subscribe to the "shelteredniche" approach with respect to infants of tender age, it would appearreasonable to conclude that no special consideration should be shown tominors who choose to ride in automobiles. But the instant case shouldserve as a warning to parents that the saving of time and expense in trans-porting children to school via a car pool may turn out to be somethingother than a blessing in disguise.R. J. SCHLAKEPROTECTION AGAINST LIABILITY FOR SCAFFOLDING ACCIDENTSBack in 1894, at a time when he was leaving the home of John Carlson,Charles Elliott stepped or fell from a platform which was not protected bya railing and he was seriously injured. Elliott sued Carlson in a commonlaw tort action for damages. There was a judgment for the defendantin the trial court and, on appeal, the Appellate Court of Illinois affirmedthe decision.' The high court, following the rule set forth in Chapin &Gore v. Walsh,2 indicated that as the exposure was open, undisguised andpatent to view, if the plaintiff did not want to incur the obvious risk, heshould not have used the platform. In much the same way, others whocame upon a real property owner's premises and were injured when they31 Huebotter v. Follett, 27 Cal. (2d) 765, 167 P. (2d) 193 (1946) ; Ott v. Perrin,116 Ind. App. 315, 63 N. E. (2d) 163 (1945) ; Sparks v. Getz, 170 Kan. 287, 225 P.(2d) 106 (1950); Coerver v. Haab, 23 Wash. (2d) 481, 161 P. (2d) 194 (1945).See also annotation in 161 A. L. R. 909.32 Kenney v. Krami Dairy, Inc., 20 Ill. App. (2d) 531, 156 N. E. (2d) 623 (1959).33 Everett v. Burg, 301 Mich. 734, 4 N. W. (2d) 63 (1942) ; Miller v. Fairley, 9Ohio Supp. 209, 47 N. E. (2d) 243 (1942).34 Davis v. Woodcock, 101 Cal. App. (2d) 618, 225 P. (2d) 918 (1951) ; Elliott v.Behner, 146 Kan. 827, 73 P. (2d) 116 (1937) ; McGuire v. Armstrong, 268 Mich. 152,255 N. W. 745 (1934) ; Wendel v. Shaw, 361 Mo. 416, 235 S. W. (2d) 266 (1950) ;Sprenger v. Braker, 71 Ohio App. 349, 49 N. E. (2d) 958 (1942) ; and Blanchette v.Sargent, 87 N. H. 15, 173 A. 383 (1934), applying the Vermont statute.1 Elliott v. Carlson, 54 Ill. App. 470 (1894).237 Ill. App. 526 (1890). In that case, at p. 529, the court said: "The owner oroccupant of land who, by invitation, expressed or implied, induces or leads othersto come upon his premises for any lawful purpose, is liable in damages to suchpersons, they using due care, for injuries occasioned by the unsafe condition of theland or its approaches, if such condition was known to him and not to them, andwas negligently suffered to exist without timely notice to the public or those likelyto act upon such invitation." Italics added.

The Legal Status of the Juvenile Car Pool Participant

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The Legal Status of the Juvenile Car Pool Participant

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