Barbara EMERY and Joyce Emery minors, by and through their Guardian ad litem, Esther Louise Emery and Esther Louise Emery, Plaintiffs and Appellants, v. Buel E. EMERY James Buel Emery, et al., Defendants and Respondents.
Barbara and Joyce Emery, minors, brought this action for personal injuries against their father, Buel, and their minor brother James. They allege that these injuries were sustained as the result of an automobile accident which occurred when they were riding as guests in a car owned by Buel and operated by James. Their mother, Esther, as the person who has the care, custody and control of the minor plaintiffs, joined as plaintiffs for recovery of moneys she, allegedly, is obligated to pay for medical, nursing, hospital and other care and treatment of the minor plaintiffs.
General demurrers to the original and the first amended complaints were sustained with leave to amend. Defendants' joint and individual demurrer to the second amended complaint was sustained without leave to amend. Thereafter judgment was rendered that plaintiffs take nothing and that defendants recover their costs. Plaintiffs have appealed.
In such a case all that is required is that a plaintiff state facts entitling him to some type of relief. Boren v. State Personnel Board, 37 Cal.2d 634, 638, 234 P.2d 981. ‘If a complaint is sustainable on any theory it is not vulnerable to a general demurrer.’ Schumm, by Whyner v. Berg, 37 Cal.2d 174, 183, 231 P.2d 39, 43, 21 A.L.R.2d 1051.
Plaintiffs present the following questions: (1) Have Barbara and Joyce stated facts sufficient to constitute causes of action against the defendants, assuming that the latter are not immune from suit because of the family relationship? (2) If they have stated such causes of action may they as unemancipated minors maintain them against their father, Buel? (3) Similarly, may they maintain such causes of action against their brother James? (4) Has Esther stated causes of action against James her minor son and against Buel her husband?
In view of the fact that the accident occurred in Idaho we must endeavor to find the answers which the Supreme Court of that state would give in response to these questions were they before it for consideration and decision. Shoemaker v. Floor, 1950, 117 Utah 434, 217 P.2d 382, 384; R. J. Reynolds Tobacco Co. v. Newby, 9 Cir., 1944, 145 F.2d 768; Davis v. Smith, D.C.E.D.Pa.1954, 126 F.Supp. 497, 504.
(1) An Idaho statute declares the obligations of the owner or operator of a motor vehicle toward a person riding as his quest. This it does in these terms: ‘No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause for damages against such owner or operator for injuries, death or loss, in case of accident, unless such accident shall have been intentional on the part of the said owner or operator or caused by his intoxication or his reckless disregard of the rights of others.’ 9 Idaho Code of 1947, § 49–1001; Stats.1939, ch. 160, p. 285.
‘The term ‘reckless disregard’ as used in said section means an act or conduct destitute of heed or concern for consequences; especially foolishly heedless of danger, headlong rash; wanton disregard, or conscious indifference to consequences.' Foberg v. Harrison, 1950, 71 Idaho 11, 225 P.2d 69, 71. See also Loomis v. Churth, Idaho, 1954, 277 P.2d 561, 563.
We entertain no doubt that the minor plaintiffs stated facts which meet in full measure the requirements of this definition.1
This definition, while it denies the guest a remedy in the case of simple negligence, apparently is not synonymous with the definition of ‘conduct * * * in reckless disregard of the safety of another’ as furnished by section 500 of the Restatement of the Law of Torts, nor with the concept of ‘wilful misconduct’ as expressed in section 403 of the California Vehicle Code. Said section 500 reads as follows: ‘The actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor's couduct not only created an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.'2 We observe that the editor says of section 500: ‘The conduct described in this Section is often called ‘wanton or wilful misconduct’ both in statutes and judicial opinions.' II Restatement of the Law of Torts, p. 1293. Professor Charles E. Carpenter, who prepared the California Annotations to this Restatement, cites a line of decisions interpretive of ‘wilful misconduct’ as used in section 403 of the California Vehicle Code, which he states are in accord with the rule expressed in section 500 of the Restatement. See ‘California Annotations,’ pp. 275–276, 1940 Pocket Supplement to II Restatement of the Law of Torts.
The Idaho Supreme Court has indicated there is a difference between ‘reckless disregard,’ as used in its guest statute, and ‘wilful misconduct’ as commonly used. See Dawson v. Salt Lake Hardware Co., 1943, 64 Idaho 666, 136 P.2d 733, 738; Hughes v. Hudelson, 1946, 67 Idaho 10, 169 P.2d 712, 716; Shoemaker v. Floor, 1950, 117 Utah 516, 217 P.2d 382, 384–385, supra. Although not coextensive with either of these other two concepts, ‘reckless disregard’ as thus interpreted is included within each of them. This, apparently, was given direct recognition by the Supreme Court of Idaho in Mason v. Mootz, 1953, 73 Idaho 461, 253 P.2d 240. After pointing out various deficiencies in the evidence, the court concluded it was ‘wholly insufficient to support the claim of reckless disregard under the guest statute’ and cited some 20 cases, including a number which relate to ‘willful misconduct.’ Of the latter, the court said: ‘We are aware that some of these cases construe a statute using the term ‘willful misconduct’ and that such term is to be distinguished from the wording of our statute. Dawson v. Salt Lake Hardware Co., supra. However, the reasoning is applicable here.' 253 P.2d at page 243.
Also it is hardly conceivable that the Legislature of Idaho intended to dispense with recovery in a case of ‘willful misconduct’ while allowing recovery in a case of ‘reckless disregard’ of others' rights, when the latter tokens a somewhat less culpable violation of duty than the former; especially, in view of the principle that statutes of this nature are viewed as not abolishing the right or the cause of action but as merely changing the nature and character of the proof required in each case, Barr v. Carroll, 128 Cal.App.2d 23, 27 et seq., 274 P.2d 717, and cases there cited.
Accordingly, the fact is noted that the minor plaintiffs have stated facts which constitute ‘wilful misconduct’ within the meaning of that term as used in section 403 of the California Vehicle Code.3 We rely upon the principles enunciated in such cases as Meek v. Fowler, 3 Cal.2d 420, 426, 45 P.2d 194; Weber v. Pinyan, 9 Cal.2d 226, 230–238, 70 P.2d 183, 112 A.L.R. 407; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869–870, 118 P.2d 465; Cope v. Davison, 30 Cal.2d 193, 196–200, 180 P.2d 873, 171 A.L.R. 667; Anderson v. Newkirch, 101 Cal.App.2d 171, 173, 225 P.2d 247. Excessive speed taken alone need not import wilful misconduct but under all of the surrounding circumstances of a case it may. Hallman v. Richards, 123 Cal.App.2d 274, 281, 266 P.2d 812; Anderson v. Newkirch, supra, 101 Cal.App.2d 171, 178–179, 225 P.2d 247, and cases there cited.
Although there is authority for pleading wilful misconduct in fairly general terms, Gibson v. Easley, 138 Cal.App. 303, 313, 32 P.2d 983; Frisvold v. Leahy, 15 Cal.App.2d 752, 757, 60 P.2d 151, when the significant facts are pleaded with particularity and in detail in addition to the general allegations (as in the instant case) there can be no doubt that the pleading is sufficient. See Norton v. Puter, 138 Cal.App. 253, 256, 32 P.2d 172.
(2) May Barbara and Joyce, as unemancipated minors, sue their father, Buel, for damages for personal injuries allegedly caused by his wilful misconduct?
We are confronted with the principle announced in 1891 in Hewlett4 v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682, that ‘so long as the parent is under obligation to care for, guide and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent.’ 9 So. at page 887. This was said, without qualification, in a case of false imprisonment, incarceration of a child in an insane asylum. It was followed in 1903 by McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664, 64 L.R.A. 991, cruel and inhuman treatment of a child by its stepmother with the consent of its father; and in 1905 by Roller v. Roller, 37 Wash. 242, 79 P. 788, 68 L.R.A. 893, the rape of a minor child by her father.
These three cases ‘set the stage and laid a foundation for a large body of decisions in numerous jurisdictions in the United States flatly denying any right of recovery to a child against a living parent under any circumstances. But in more recent years it would seem that the trend of judicial decisions and the thinking of legal writers has been toward amelioration and limitation of the rule, based upon a recognition that the Hewlett, McKelvey and Roller cases were wrongly decided.’ Davis v. Smith, D.C.E.D.Pa.1954, supra, 126 F.Supp. 497, 503.
Excellent reviews of the decisions, demonstrating that modern trend toward amelioration and limitation of the rule announced in the Hewlett case, are furnished by Dunlap v. Dunlap, 1930, 84 N.H. 352, 150 A. 905–915, 71 A.L.R. 1055; Cowgill v. Boock, 1950, 189 Or. 282, 218 P.2d 445, 448–453, 19 A.L.R.2d 405; Borst v. Borst, 1952, 41 Wash.2d 642, 251 P.2d 149–157, disapproving the doctrine as broadly stated in the Hewlett case and followed in the Roller, 1905, 37 Wash. 242, 79 P. 788, case; Davis v. Smith, 1954, supra, 126 F.Supp. 497, 502–508; Prosser on Torts, 905–908, sec. 99; McCurdy on ‘Torts Between Persons in Domestic Relation’ 43 Harv.L.Rev. 1030, Parent and Child, at 1056–1082 (May, 1930); 79 U. of Pa.L.Rev. 80–84 (Nov. 1930); 26 Geo.L.J. 139 (1937–38); 18 B.U.L.Rev. 468 (1938); 5 Miami L.Qtrly. 328 (1950–51); 29 N.C.L.R.ev. 214 (1950–51); 30 Ore.L.Rev. 86 (1950–51); 25 St. John's L.Rev. 118 (1950–51); 38 Clm.L.Q. 462–470 (1953); 39 Va.L.Rev. 389–391 (1953); 29 N.Y.U.L.Rev. 1302–1305 (1954); 18 Albany L.Rev. 270 (1954); 23 Fordham L.Rev. 110 (1954); 7 Okla.L.Rev. 238 (1954); 19 A.L.R.2d 423–462, Annotation.5
No simple rule or pat formula has been evolved for ready application in each case. The situation does not lend itself to that. Certain principles have been developed, in the light of which the facts peculiar to each case may be considered and appraised in determining whether the suit should or should not be allowed. These principles we find well expressed by Judge Lord in Davis v. Smith, supra, 126 F.Supp. 497, 504, in these words: ‘The view of the more recent decisions and the modern legal authorities on the subject would appear to be that the rule of non-parental liability is to apply only where the injuries occur while the parent is exercising his parental duty in the narrow sense. Under this view the parent would not be liable for discipline or chastisement flowing from his duties as head of the family or for injuries resulting from disrepair or negligent defects in the family home. It is recognized that even within this scope wrongs may be done to the child. However, these wrongs may still have to be sacrificed to public policy in favor of protecting parental discipline in the home and preserving the family relationships. Although even some wrongs may be hidden by this immunity, public policy, as it exists today, should permit this limited immunity. But the immunity given to the parent is not one of right which he may demand, but is granted him only so long as he conducts himself properly as a parent and carries out the parental duties that society imposes upon him. The parental non-liability is given as a means of enabling the parent to discharge his duties in preserving the domestic tranquility. It should not shield the parent where the matter arises from a ‘non-parental’ occurrence, or where the parent commits an atrocious assault outraging the duties imposed upon him as a parent by society, or where either the parent or the child is dead and there is thus no tranquil relationship between them to preserve.'
Consonant with these principles it appears that the ‘courts are in apparent agreement that where the child, while riding in the family automobile, is injured as a result of negligence on the part of the parent driver, no cause of action against the parent may be maintained.’ Borst v. Borst, supra, 1952, 41 Wash.2d 642, 251 P.2d 149, 152, citing some ten cases.
When the ‘family car’ has not been involved the immunity rule has been less uniformly applied. In Borst v. Borst, supra, 1952, 41 Wash.2d 642, 251 P.2d 149, the child allegedly sustained injuries by reason of the father's negligence while operating a truck for business purposes. The court deemed this a tort committed by the parent while dealing with the child in a nonparental transaction and the mantle of immunity disappeared with the reason for it. For other cases, some in accord and some not in accord, with the Borst case, see pages 152–153 of 251 P.2d. Myers v. Tranquility Irr. Dist., 26 Cal.App.2d 385, 79 P.2d 419, is not in accord. Sign v. Signs, 1952, 156 Ohio St. 566, 103 N.E.2d 743, is in accord with the Borst case.
Dunlap v. Dunlap, 1930, 84 N.H. 352, 150 A. 905, 71 A.L.R. 1055, involved a 16-year old boy who was working for his father during the summer vacation, receiving regular wages less the value of his board at home. The father carried employer's liability insurance, reported the boy as an employee, and paid insurance premiums in respect to him the same as in respect to the other workmen. Immunity was denied, the court concluding its discussion with these words: ‘The employment of the son was entered upon and continued under circumstances from which it could be found that the father intended to take on a full master's responsibility, and to release his parental control so far as necessary to attain that end. And it must be found that this suit has no tendency to disturb the family relations. Proof of either situation would remove the only substantial objection to the maintenance of the action.’ 150 A. at page 915.
Cases in which the death of the offending parent, marking it as it did a termination of the family relationship, was given as a reason, if not the only reason, for denying immunity, include Davis v. Smith, supra, 126 F.Supp. 497, 508; Mahnke v. Moore, 1951, 197 Md. 61, 77 A.2d 923; Welch v. Davis, 1951, 410 Ill. 130, 101 N.E.2d 547, 28 A.L.R.2d 656.
Illustrations of denial of immunity when the injury is caused by the intentional tort of the parent are furnished by Treschman v. Treschman, 1901, 28 Ind.App. 206, 61 N.E. 961; Dix v. Martin, 1913, 171 Mo.App. 266, 157 S.W. 133, 136; and Mahnke v. Moore, supra, 1951, 197 Md. 61, 77 A.2d 923.
Cases in which ‘wilful misconduct’ is deemed a sufficient reason for denying immunity include Meyer v. Ritterbush, 1949, 196 Misc. 551, 92 N.Y.S.2d 595; Cowgill v. Boock, supra, 1950, 189 Or. 282, 218 P.2d 445, 19 A.L.R.2d 405; Wright v. Wright, 1952, 85 Ga.App. 721, 70 S.E.2d 152; Siembab v. Siembab, 1952, 202 Misc. 1053, 112 N.Y.S.2d 82. Significant are these remarks of the court in the Cowgill case: ‘We are concerned here with a case involving more than ordinary or gross negligence. It is one of wilful misconduct of the father whose wrongful act resulted in the untimely death of his young son. The wrongful conduct of the father in driving the automobile while drunk is in no way referable to his duties as a parent. Indeed, in this case there was a clear abandonment of the parental duty.’ Page 450 of 218 P.2d; emphasis added.
In a number of cases of immunity because mere negligence was involved, the court has been careful to reserve the question whether immunity would be extended if an intentional tort or if wilful misconduct were involved. Baker v. Baker, Mo.Sup., 1953, 263 S.W.2d 29, the court observing that this case involved mere negligence and none of the exceptions which obtained in the Cowgill, Borst, or Dunlap cases; Ball v. Ball, Wyo., 1954, 269 P.2d 302, expounding Montana law, the court observed the absence of allegations of wilful or malicious tort; Levesque v. Levesque, 1954, 99 N.H. 147, 106 A.2d 563; Cannon v. Cannon, 1942, 287 N.Y. 425, 40 N.E.2d 236, ‘wilful misconduct’ not a factor; Matarese v. Matarese, 1925, 47 R.I. 131, 131 A. 198, at page 200, 42 A.L.R. 1360, the court commented critically on the 1905 Washington case, 79 P. 788; Aboussie v. Aboussie, Tex.Civ.App., 1954, 270 S.W.2d 636, dictum that a child may sue its parent for a wilful or malicious personal tort; Brumfield v. Brumfield, 1953, 194 Va. 577, 74 S.E.2d 170, at page 174, court observing that no wilful or malicious act was involved ‘and we express no opinion on that question’; Securo v. Securo, 1931, 110 W.Va. 1, 156 S.E. 750, immunity rule approved insofar as it applies to mere carelessness or failure to exercise due diligence.
We conclude that defendant Buel is not immune from suit in respect to the causes of action stated by Barbara and Joyce respectively, whether predicated upon ‘wilful misconduct’ or upon ‘reckless disregard of the rights of others' as the latter term is used in the Idaho statute. We believe it reasonable to predict that the Supreme Court of Idaho will so hold when the question comes before it for consideration and decision, because this view of the law is in harmony with the modern trend and our reading of Idaho's decisions convinces us that those decisions are in harmony with that trend. For example, when formulating our decision in Christiana v. Rose, 1950, 100 Cal.App.2d 46, 222 P.2d 891, concerning the right of a married woman living apart from her husband to sue a third person for the death of their child who was in her custody, we drew inspiration and support from Idaho's decision in Lorang v. Hays, 1949, 69 Idaho 440, 209 P.2d 733.
(3) It seems clear that Barbara and Joyce may maintain suit against their brother James for wilful misconduct or for reckless disregard of the rights of others as the latter term is used in the Idaho statute.
There is here involved no history of immunity from suit based upon the family as an institution, such as there is in the parent-child relationship. There is, therefore, all the greater reason to hold that a minor child is not immune from suit for a minor sister's injuries allegedly caused by his wilful misconduct or reckless disregard of the rights of others. It was held in Rozell v. Rozell, 1939, 281 N.Y. 106, 22 N.E.2d 254, that a suit by a 12-year old boy against his 16-year old sister for injuries sustained while riding in an automobile negligently operated by her was maintainable. It is a well reasoned decision and contains a good review of the pertinent case law on the subject. See also annotation in 123 A.L.R. 1020.
(4) Has Esther stated a cause of action against James, her minor son, and against Buel, her husband?6
Esther seeks recoupment for the moneys she alleges she spent and will be obligated to pay for hospitalization, physicians and surgeons, X-rays, drugs, medical care, nursing and other miscellaneous expenses for the care and treatment of the minor plaintiffs occasioned by their alleged injuries.
Insofar as her action against the son is concerned there might be no immunity stemming from the parent-child relationship, but there is a serious question whether or not she has the right to sue either the son or the father for the consequential damages which she pleads.
Although she alleges she has the custody of Barbara and Joyce and is responsible for their support and medical care, she does not allege facts tending to show that anything but the normal family relationship obtains, e. g., she does not allege that she is living separate and apart from her husband and that the sole custody of the children has been awarded her. In addition, although the accident allegedly occurred in June, 1952, in neither her original complaint (filed April 9, 1953), nor in her first amended complaint (filed August 3, 1953), nor in her second and last amended complaint (filed October 15, 1953) does she state that she has paid any of these expenses; instead, she refers to them as ‘incurred and necessarily to be incurred * * * in sums which are not now known to this plaintiff.’ Such a pleading does not appear to render inapplicable to this phase of the case the principle well established in Idaho that in general the duty to support the wife and minor children generally rests upon the husband and father. It is not primarily her duty to support him and the children. The fact that she has an earning capacity (none is alleged here) does not relieve him of his duty. See Hamshire v. Hampshire, 1950, 70 Idaho 522, 223 P.2d 950, 951, 953, 21 A.L.R.2d 1159; Heslip v. Heslip, 1953, 74 Idaho 368, 262 P.2d 999, 1001. So, it would seem, Esther is suing James and Buel for expenditures which in a legal sense would be primarily Buel's obligation, not hers, to make. That seems incongruous at the very least.
Idaho is a community property state. This calls for consideration of the community property aspect of a right of action for consequential damages stemming from the injury of a minor child. It appears well established in Idaho that a cause of action for personal injuries to either spouse is property of the community. See cases collected in 35 A.L.R.2d 1199, section 4 at 1219–1223. Consequential damages for injuries to their minor children would seem to be in the same category. It is so in California. Flores v. Brown, 39 Cal.2d 622, 630, 248 P.2d 922. We have not found an Idaho case directly in point. Checketts v. Bowman, 1950, 70 Idaho 463, 220 P.2d 682, was an action by husband and wife for damages for the death of their minor child but there was no discussion of the nature of the cause of action (whether community property or not), nor of the capacity of either or both to sue.
Viewing as community property the cause of action here involved, we are confronted with the fact that the husband has management and control of the community property except the earnings of the wife for her personal services. Idaho Code, 1947, § 32–912. This provision makes him the agent and trustee for the marital community. Morgan v. Firestone Tire & Rubber Co., 1948, 68 Idaho 506, 201 P.2d 976, 981. It follows that the community can not be sued nor can judgment be rendered against it without the husband being made a party to the suit. First Nat. Bank of Sandpoint v. Samuels, 1933, 53 Idaho 780, 27 P.2d 959. Because he has management and control of the community property, the husband is the only necessary party plaintiff and may sue in one action to recover damages for the wife's personal injuries and for expenses for medical attendance and hospital fees incurred by reason thereof. Labonte v. Davidson, 1918, 31 Idaho 644, 175 P. 588, 589–590. It would seem logically to follow that the same would be true of a suit for consequential damages resulting from injuries to their minor children.
For the reasons indicated, it seems reasonable to conclude that Esther has not pleaded facts sufficient to constitute a cause of action in her favor against Buel or against James for the medical, hospital, and other expenses for the care and treatment of the minor plaintiffs.7
We conclude that the trial court correctly sustained the demurrer to Esther's alleged cause of action for consequential damages and committed no abuse of discretion in denying permission to amend that count a third time; that it was error to sustain the demurrers to the causes of action respectively stated by Barbara and Joyce; and that, therefore, the judgment must be reversed.
The judgment is reversed with directions to take such further steps and proceedings in the action as will not be inconsistent with the views herein expressed. Defendants James and Buel Emery will recover their appeal costs from plaintiff Esther; plaintiffs Barbara and Joyce will recover their appeal costs from James and Buel.
1. In the instant case each minor plaintiff alleged: (1) plaintiff was a guest riding in an automobile driven by defendant James as agent and employee of defendant Buel, its owner. (2) James was a minor of 17 years who had only been driving for a short time and was an unskilled and inexperienced driver and unaccustomed to driving during the times, in the places and under the circumstances which obtained; facts known to Buel. (3) James and Buel were guilty of wilful misconduct, which consisted of the following acts under the following circumstances; (a) Buel directed James to drive, knowing that James was sleepy and drowsy and had had no sleep for a long period in excess of 24 hours; (b) for many miles and a long period of time prior to the accident James drove at excessive rates of speed with the knowledge and consent of Buel; (c) Buel directed James to drive, knowing the facts stated in clause (2), above; (d) Buel knew the road was in a dangerous condition, in that it was only a 2-lane highway with dirt and gravel on either side; (e) James fell asleep at the wheel while the car was traveling at said high and excessive speed and lost control, causing the car to roll over; (f) all of the aforementioned wilful misconduct of the defendants took place with a complete disregard of and indifference to the great possibility of injuring the persons riding in the car and with full knowledge of the danger involved; and (g) as a proximate result of said wilful misconduct the automobile left the highway and rolled over, causing plaintiff severe, serious and permanent injuries.
2. Section 500 is set in relief by § 282 of the Restatement of the Law of Torts: ‘In the Restatement of this Subject, negligence is any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ For an informative discussion of ‘Negligence contrasted with recklessness,’ see Comment d concerning § 282, and the Special Note appended to Comment d. II Restatement of the Law of Torts, pp. 739–740.
3. In the absence of Idaho cases (at least none have come to our attention) we draw on California case law as persuasive authority.
FN4. The plaintiff's name appears as ‘Hewellette’ in 9 So. 885 but as ‘Hewlett’ in 68 Miss. 703 and 13 L.R.A. 682.. FN4. The plaintiff's name appears as ‘Hewellette’ in 9 So. 885 but as ‘Hewlett’ in 68 Miss. 703 and 13 L.R.A. 682.
5. For the sake of brevity we refer to these cases, taxts, and notes for the exposition of the policy and trend in this field, which need not be repeated in detail here.
6. The complaint alleges that Esther is the mother of the minor plaintiffs; that they are daughters of defendant Buel and that the defendant James is the son of Buel but does not allege that she is married to Buel nor does she allege that James is her son. However, counsel for the respective parties orally and in writing have discussed the issues upon the assumption that Esther and Buel are husband and wife and that she and James are mother and son.
7. In their concluding memorandum plaintiffs state that in view of their inability to furnish direct authorities in support of Esther's claims against Buel and James, and if this court does not find that she has pleaded a cause of action, ‘then, in that event, we [plaintiffs] are content to have this court disregard her third cause of action pleaded in the complaint.’ We might treat that statement as an abandonment of the third cause of action, in the contingency indicated, but for the fact that it seems coupled with a statement by the plaintiffs that as they view the law ‘the pleading can at least be enlarged under the first two causes of action to cover all disbursements and costs,’ a question not before us upon this appeal and as to which we express no opinion.
FRED B. WOOD, Justice.
PETERS, P. J., and BRAY, J., concur.