[529] COUNSEL

Hurley & Hurley and Joseph G. Hurley for Plaintiffs and Appellants.

LaFollette, Johnson, Horgan & Robinson, Patrick J. Hast, Horvitz & Minikes, Ellis J. Horvitz and Morton Minikes for Defendant and Respondent.

OPINION

LILLIE, J.

Plaintiffs Maxine Hammontree and her husband sued defendant for personal injuries and property damage arising out of an automobile [530] accident. The cause was tried to a jury. Plaintiffs appeal from judgment entered on a jury verdict returned against them and in favor of defendant.

The evidence shows that on the afternoon of April 25, 1967, defendant was driving his 1959 Chevrolet home from work; at the same time plaintiff Maxine Hammontree was working in a bicycle shop owned and operated by her and her husband; without warning defendant's car crashed through the wall of the shop, struck Maxine and caused personal injuries and damage to the shop.

Defendant claimed he became unconscious during an epileptic seizure losing control of his car. He did not recall the accident but his last recollection before it, was leaving a stop light after his last stop, and his first recollection after the accident was being taken out of his car in plaintiffs' shop. Defendant testified he has a medical history of epilepsy and knows of no other reason for his loss of consciousness except an epileptic seizure; prior to 1952 he had been examined by several neurologists whose conclusion was that the condition could be controlled and who placed him on medication; in 1952 he suffered a seizure while fishing; several days later he went to Dr. Benson Hyatt who diagnosed his condition as petit mal seizure and kept him on the same medication; thereafter he saw Dr. Hyatt every six months and then on a yearly basis several years prior to 1967; in 1953 he had another seizure, was told he was an epileptic and continued his medication; in 1954 Dr. Kershner prescribed dilantin and in 1955 Dr. Hyatt prescribed phelantin; from 1955 until the accident occurred (1967) defendant had used phelantin on a regular basis which controlled his condition; defendant has continued to take medication as prescribed by his physician and has done everything his doctors told him to do to avoid a seizure; he had no inkling or warning that he was about to have a seizure prior to the occurrence of the accident.

In 1955 or 1956 the Department of Motor Vehicles was advised that defendant was an epileptic and placed him on probation under which every six months he had to report to the doctor who was required to advise it in writing of defendant's condition. In 1960 his probation was changed to a once-a-year report.

Dr. Hyatt testified that during the times he saw defendant, and according to his history, defendant "was doing normally" and that he continued to take phelantin; that "[t]he purpose of the [phelantin] would be to react on the nervous system in such a way that where, without the medication, I would say to raise the threshold so that he would not be as subject to these episodes without the medication, so as not to have the seizures. He would not be having the seizures with the medication as he would without [531] the medication compared to taking medication"; in a seizure it would be impossible for a person to drive and control an automobile; he believed it was safe for defendant to drive.

Appellants' contentions that the trial court erred in refusing to grant their motion for summary judgment on the issue of liability and their motion for directed verdict on the pleadings and counsel's opening argument are answered by the disposition of their third claim that the trial court committed prejudicial error in refusing to give their jury instruction on absolute liability.^[1]

Under the present state of the law found in appellate authorities beginning with Waters v. Pacific Coast Dairy, Inc., 55 Cal. App.2d 789, 791-793 [131 P.2d 588] (driver rendered unconscious from sharp pain in left arm and shoulder) through Ford v. Carew & English, 89 Cal. App.2d 199, 203-204 [200 P.2d 828] (fainting spells from strained heart muscles), Zabunoff v. Walker, 192 Cal. App.2d 8, 11 [13 Cal. Rptr. 463] (sudden sneeze), and Tannyhill v. Pacific Motor Trans. Co., 227 Cal. App.2d 512, 520 [38 Cal. Rptr. 774] (heart attack), the trial judge properly refused the instruction. The foregoing cases generally hold that liability of a driver, suddenly stricken by an illness rendering him unconscious, for injury resulting from an accident occurring during that time rests on principles of negligence. However, herein during the trial plaintiffs withdrew their claim of negligence and, after both parties rested and before jury argument, objected to the giving of any instructions on negligence electing to stand solely on the theory of absolute liability. The objection was overruled and the court refused plaintiffs' requested instruction after which plaintiffs waived both opening and closing jury arguments. Defendant argued the cause to the jury after which the judge read a series of negligence instructions and, on his own motion, BAJI 4.02 (res ipsa loquitur).

Appellants seek to have this court override the established law of this state which is dispositive of the issue before us as outmoded in today's social and economic structure, particularly in the light of the now recognized principles imposing liability upon the manufacturer, retailer and all distributive and vending elements and activities which bring a product to the consumer to his injury, on the basis of strict liability in tort expressed first in Justice Traynor's concurring opinion in Escola v. Coca Cola Bottling [532] Co., 24 Cal.2d 453, 461-468 [150 P.2d 436]; and then in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]; Vandermark v. Ford Motor Co., 61 Cal.2d 256 [37 Cal. Rptr. 896, 391 P.2d 168]; and Elmore v. American Motors Corp., 70 Cal.2d 578 [75 Cal. Rptr. 652, 451 P.2d 84]. These authorities hold that "A manufacturer [or retailer] is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d 57, 62; Vandermark v. Ford Motor Co., supra, 61 Cal.2d 256, 260-261.) Drawing a parallel with these products liability cases, appellants argue, with some degree of logic, that only the driver affected by a physical condition which could suddenly render him unconscious and who is aware of that condition can anticipate the hazards and foresee the dangers involved in his operation of a motor vehicle, and that the liability of those who by reason of seizure or heart failure or some other physical condition lose the ability to safely operate and control a motor vehicle resulting in injury to an innocent person should be predicated on strict liability.

We decline to superimpose the absolute liability of products liability cases upon drivers under the circumstances here. The theory on which those cases are predicated is that manufacturers, retailers and distributors of products are engaged in the business of distributing goods to the public and are an integral part of the over-all producing and marketing enterprise that should bear the cost of injuries from defective parts. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262 [37 Cal. Rptr. 896, 391 P.2d 168]; Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049].) This policy hardly applies here and it is not enough to simply say, as do appellants, that the insurance carriers should be the ones to bear the cost of injuries to innocent victims on a strict liability basis. In Maloney v. Rath, 69 Cal.2d 442 [71 Cal. Rptr. 897, 445 P.2d 513], followed by Clark v. Dziabas, 69 Cal.2d 449 [71 Cal. Rptr. 901, 445 P.2d 517], appellant urged that defendant's violation of a safety provision (defective brakes) of the Vehicle Code makes the violator strictly liable for damages caused by the violation. While reversing the judgment for defendant upon another ground, the California Supreme Court refused to apply the doctrine of strict liability to automobile drivers. The situation involved two users of the highway but the problems of fixing responsibility under a system of strict liability are as complicated in the instant case as those in Maloney v. Rath (p. 447), and could only create uncertainty in the area of its concern. As stated in Maloney, at page 446: "To invoke a rule of strict liability on users of the streets and highways, however, without also establishing in substantial detail how the [533] new rule should operate would only contribute confusion to the automobile accident problem. Settlement and claims adjustment procedures would become chaotic until the new rules were worked out on a case-by-case basis, and the hardships of delayed compensation would be seriously intensified. Only the Legislature, if it deems it wise to do so, can avoid such difficulties by enacting a comprehensive plan for the compensation of automobile accident victims in place of or in addition to the law of negligence."

The instruction tendered by appellants was properly refused for still another reason. Even assuming the merit of appellants' position under the facts of this case in which defendant knew he had a history of epilepsy, previously had suffered seizures and at the time of the accident was attempting to control the condition by medication, the instruction does not except from its ambit the driver who suddenly is stricken by an illness or physical condition which he had no reason whatever to anticipate and of which he had no prior knowledge.

The judgment is affirmed.

Wood, P.J., and Thompson, J., concurred.

Appellants' petition for a hearing by the Supreme Court was denied December 16, 1971.

[1] "When the evidence shows that a driver of a motor vehicle on a public street or highway loses his ability to safely operate and control such vehicle because of some seizure or health failure, that driver is nevertheless legally liable for all injuries and property damage which an innocent person may suffer as a proximate result of the defendant's inability to so control or operate his motor vehicle.

"This is true even if you find the defendant driver had no warning of any such impending seizure or health failure."

[46 Wn.2d 198] [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

HILL, Justice.

The liability of an infant for an alleged battery is presented to this court for the first time. Brian [46 Wn.2d 199] Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings:

'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate [46 Wn.2d 200] the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of [279 P.2d 1093] her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

'(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

'(b) the contact is not consented to by the other or the [46 Wn.2d 201] other's consent thereto is procured by fraud or duress, and

'(c) the contact is not otherwise privileged.'

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize [46 Wn.2d 202] that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.'

A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have [46 Wn.2d 203] discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian's age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

Nor do we find any error in the record that warrants a new trial.

What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial [46 Wn.2d 204] certainty that the plaintiff intended to sit down where the chair had been before he moved it, and still without reference to motivation.

The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

[46 Wn.2d 205] The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

Remanded for clarification.

SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.