In defendants' petition for a rehearing it is urged that it is our duty to at least mention and repudiate the doctrine announced by the first district court of appeal in Mayer v. Anderson, 36 Cal. App. 741 [173 Pac. 174], if that is the effect of our decision, and it is also urged that the decision. of that court in Spring v. Tawa, 49 Cal. App. 100 [192 Pac. 1051], is directly in point and was entitled to consideration.

While we do not recognize any obligation on the part of this court to interpret and distinguish decisions of the district court of appeal because it is contended that the rule there laid down is inconsistent with the one adopted by this court, either in its previous opinions or in the opinion pronounced, in view of the respondents' insistence, it is proper to say that both cases are readily distinguishable from the case at bar. In Spring v. Tawa, 49 Cal. App. 100 [192 Pac. 1051], the pedestrian was standing in a position of safety and being frightened by the approaching automobile ran toward it and into its side as it passed her. Moreover, the rule stated in that case as to the duty of the trial court in directing a verdict is incorrectly stated as follows: "The rule has been laid down, both in the supreme court and in this court, that the ruling of a trial court as to whether a given state of facts presented before it does or does not amount to negligence as a matter of law will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. (Mayne v. San Diego Elec. Ry. Co., 179 Cal. 173 [175 Pac. 690]; Diamond v. Weyerhaeuser, 178 Cal. 540 [174 Pac. 38]; Charves v. San Francisco O. T. Ry., 44 Cal. App. 221 [186 Pac. 154])." The authorities cited do not sustain the rule laid down. The case of Mayne v. San Diego Elec. Ry. Co., supra, cited by the district court in support of its statement was one involving the alleged contributory negligence of a child of fourteen years of age and it was in this connection that it was stated "that as a rule courts upon appeal have not interfered with the discretion of trial courts in referring or in refusing to refer to juries the question as to whether the contributory negligence of children of the age of fourteen years or under was such as to prevent their recovery for injuries sustained by them." (179 Cal. 177 [175 Pac. 692].) The correct

rule is stated in Diamond v. Weyerhaeuser, 178 Cal. 540 [174 Pac. 38]:

[3] "If there was any substantial evidence tending to show that the collision was caused by negligence on the part of defendant's driver, the action of the court in directing a verdict was, of course, erroneous. The existence or nonexistence of negligence is ordinarily a question of fact to be determined by a jury. On the other hand, the court may withdraw the case from the jury and direct a verdict where the evidence is undisputed, 'or is of such conclusive character, that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it.' (Davis v. California St. C. R. R. Co., 105 Cal. 131 [38 Pac. 647]; Estate of Baldwin, 162 Cal. 471 [123 Pac. 267].)"

With reference to the case of Mayer v. Anderson, supra, respondents earnestly insist that the case is "not distinguishable and is in direct conflict with the principle of law announced in the case at bar." To distinguish that case from this it is only necessary to note that the plaintiff in that case walked across Kearny Street on the north side of Market Street in San Francisco at 5 o'clock in the afternoon when the traffic was very heavy, "looking straight ahead, without glancing to either side, and was absolutely oblivious to the proximity of the automobile right up to the moment of the impact, at which time he had traversed about three-quarters of the distance across the street." The court properly held that the pedestrian was bound to do more than this, in the exercise of due care, to avoid colliding with an automobile traveling no faster than the pedestrian was walking.

Rehearing denied.

Kerrigan, J., Lennon, J., Seawell, J., Lawlor, J., and Myers, J., con';urred.

[L. A. No. 7309. In Bank.-March 23, 1923.]

AUGUSTA E. BUELKE, Special Administratrix, etc., Respondent, v. NAT LEVENSTADT et al., Appellants. [1] NEGLIGENCE ONE IN LOCO PARENTIS-LIABILITY FOR NEGLIGENCE OF MINOR SIGNING APPLICATION FOR LICENSE-MOTOR VEHICLE ACT.-One who stands in loco parentis to a minor and signs, as "father," an application to the motor vehicle department for a license to permit such minor to operate an automobile, is liable for the negligent operation by the minor of an automobile on the public highway, under section 24 of the Motor Vehicle Act (Stats. 1919, p. 225), which imputes the negligence of a minor to the person who shall have signed his application for a license. [2] ID. MOTOR VEHICLE ACT-CONSTITUTIONALITY OF

- TITLE.-The

portion of section 24 of the Motor Vehicle Act imputing the negligence of a minor in operating an automobile on the public highway to one signing his application for a license is not violative of section 24 of article IV of the state constitution, which provides that every act shall embrace but one subject, which subject shall be embodied in its title.

[3] CONSTITUTIONAL LAW- TITLE REQUIREMENTS.- All that section 24 of article IV of the state constitution, providing that every act shall embrace but one subject, which shall be embodied in its title, requires is, that the subject must be in some way indicated by the title of the act, or be logically germane to it, and included within its scope.

[4] ID.-MOTOR VEHICLE ACT-UNIFORM AND GENERAL PROVISIONS.The provision of the Motor Vehicle Act for licensing minors to operate automobiles and imputing the negligence of the minor therein to one signing his application for such license is not unconstitutional in being unreasonable and discriminatory, and not uniform and general in its application.

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul J. McCormick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Jennings & Belcher for Appellants.

Duke Stone and Perry F. Backus for Respondent.

1. Liability of parent owning car for acts of child driver, notes, Ann. Cas. 1914C, 1091; Ann. Cas. 1916A, 661; Ann. Cas. 1917D, 1002; Ann. Cas. 1918E, 1146; 16 A. L. R. 274.

WASTE, J.-The plaintiff, as administratrix of the estate of her deceased husband, brought this action to recover for injuries resulting in the death of the decedent and caused by the negligent operation of a motor vehicle by defendant Nat Levenstadt, a minor. The automobile was owned by defendant Morris Levenstadt, uncle of Nat, whose relation to the boy was that of in loco parentis, and who, in order that Nat might procure a license to operate a motor vehicle, had signed the required application therefor. At the time of the accident the uncle was not present, and the boy was engaged upon an independent mission of his own. Special issues were submitted to the jury upon the answers to which the court entered judgment in plaintiff's favor, and against both defendants, who have appealed.

It is admitted at the outset of the presentation of the appeal that, as to the defendant Nat Levenstadt, the evidence of negligence was conflicting, and that as to him there is no just ground for reversal. We shall therefore disregard him in the discussion of the case, and shall refer to the defendant Morris Levenstadt as the appellant. He was held liable solely by reason of the provisions of section 24 of the Motor Vehicle Act of 1915 (Stats. 1915, p. 411, as amended by Stats. 1919, p. 223), which provides for the licensing of persons operating motor vehicles, and imputes the negligence of a minor in the operation of an automobile upon the public highway to the person who shall have signed the application of such minor for such license. The section provides in brief that it shall be unlawful for any person to operate or drive such vehicle upon the public highways unless licensed by the motor vehicle department of the state. The concluding portion, the part germane to this discussion, is as follows: "provided, that it shall be unlawful for any person to cause or knowingly to permit his or her child, ward or employee to operate or drive a motor vehicle upon the public highway, whether as a chauffeur or operator, without having first obtained such license as is hereinbefore specified; provided, that the application to the department of a minor to operate or drive a motor vehicle, whether as chauffeur or operator, shall not be granted by the department unless the parent or parents having the custody of such applicant or the guardian of such applicant shall have joined in said application by signing the same;

and provided, further, that any negligence of a minor, so licensed, in operating or driving a motor vehicle upon the public highway, whether as chauffeur or operator, shall be imputed to the person or persons who shall have signed the application of such minor for said license, which person or persons shall be jointly and severally liable with such minor for any damages caused by such negligence."

[1] Appellant's first contention is that, as he is neither the parent nor guardian of Nat Levenstadt, he is not one of the persons required by the statute to sign a minor's application, and is, therefore, a mere volunteer, who cannot be held liable under the provisions of the act. To sustain such contention would be to countenance a fraud upon the people of the state. In order to procure a license for his minor nephew, appellant joined in the application of the boy to the motor vehicle department of California, in which he gave his relationship to the minor as "father." Upon the faith of this guarantee the license to the minor was issued. The evidence shows that Nat's parents died when he was twelve years of age. His sister and he then went to live with their uncle, this appellant, who had no children of his own, and the record conclusively establishes that from that time on appellant stood in the relation of in loco parentis to both children. He conducted a grocery-store and owned a delivery truck for use in his business. Nat drove this truck for him. He testified that "no one else had anything to do with the driving of the truck except Nat." For these services appellant paid the boy, who was about nineteen years of age, eight dollars a week and his board. Had appellant permitted Nat, regarded either as a son or as an employee, to operate or drive a motor vehicle upon the public highway without first having obtained a license as required by the act, he would have been guilty of a misdemeanor. In order to avail himself of Nat's services he was compelled by law to join with the minor in the application to the department for the proper license. He did so, misrepresenting his relationship to the applicant. It is quite apparent why he did so, and we are not constrained to assist him in evading the liability he assumed over his own signature, by any nicety of construction or regard for technical use of words.