#### Donnie Jean COOK, a minor, by and through her mother and natural guardian, Sandra Jean Pendarvis, and Sandra Jean Pendarvis, individually, Appellants, v. Pauline A. THERIOT et al., Appellees.

No. N-549.

District Court of Appeal of Florida, First District.

June 8, 1971.

Rehearing Denied July 8, 1971.

Steven A. Werber, Jacksonville, for appellants.

Walter L. Robison, of Matthews, Osborne & Ehrlich, Jacksonville, and Mattox S. Hair, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.

MELVIN, WOODROW M.,

Associate Judge.

Sandra Jean Pendarvis, individually and Donnie Jean Cook, a minor, by her said mother and natural guardian, were plaintiffs in the trial court, and have perfected this appeal from the final order of the Court dismissing with prejudice their complaint against defendants Harry A. Strayer and Liberty Mutual Insurance Company.

Plaintiffs sought damages in their action for injuries sustained by Donnie Jean Cook, age four years, while riding as a guest passenger in a motor vehicle owned by defendant Strayer and allegedly being operated with his knowledge and consent, by one Sharon Strayer Jamison.

Sandra Jean Pendarvis, in her individual claim, sought medical expenses incident to the injury of her infant child, and loss of services. It is alleged that at the time and place of the accident Donnie Jean was a passenger in the motor vehicle, when the same was involved in a collision due to the negligent operation thereof by Sharon Strayer Jamison, and that as a result of the collision the minor plaintiff sustained permanent injuries. It appears from the complaint the minor was riding in the automobile at the time in question for the purpose of going to a wedding rehearsal in order to serve as a flower girl at the wedding of Sharon Strayer Jamison.

The defendants’ motion to dismiss was based upon the proposition that the minor was a passenger in the defendant’s automobile ; that the complaint failed to allege any *458fact that would preclude the operation of Section 320.59 Florida Statutes 1969, F.S.A. and therefore, plaintiffs may not recover against defendant Strayer and his insurance carrier upon mere showing of simple negligence.

The able trial Judge granted the Motion.

We reverse.

The critical point for determination is whether this infant of four years is a “guest or passenger” within the contemplation of the guest statute, 320.59, Florida Statutes, F.S.A.

The matter of becoming a guest, for the purpose of the guest statute, involves the judgment factor of *accepting an invitation,*Andrews v. Kirk, 106 So.2d 110 (Fla.App. 3rd Dist., 1958).

It may not in reason be contended that a child of the age of four years may exercise such judgment.

In Andrews v. Kirk, the Court held that the host-guest status is a voluntary one and may be altered by the failure of the host-operator to yield to the guest’s protests as to the hosts negligent operation of the automobile, or demands to be let out of the vehicle, and further, upon the relationship being thus altered, the passenger could recover for resultant injuries on proof of either gross or simple negligence.

It may not in reason be said that this minor child could exercise such judgment.

An infant may not commit a criminal act until he has attained sufficient age, has sufficient intelligence and perception to understand the nature of his act and to comprehend the legal consequences thereof. So it is that a child under the age of seven years is conclusively presumed to be incapable of committing a crime.

Between the ages of seven and fourteen a presumption of incapacity exists, and the presumption decreases with the progress of his years toward the fourteenth birthday. 9 Fla.Jur. Criminal Law, Section 33, page 42.

We cannot perceive that a child under the age of seven years may exercise the judgment factor involved in accepting an invitation to be a guest or that such child may exercise the judgment that would be involved in terminating that status, as could an adult.

In our view it was never the purpose of the Legislature of Florida by enactment of the guest statute to extend to an automobile operator immunity from the result of his simple negligence, when such result is injury to a child passenger of such tender age as the one whose rights this court is called upon to consider.

The status of infants, under the law, is a fact of general knowledge. The Legislature of Florida is composed of knowledgeable and intelligent citizens. We must therefore assume that the Legislature did not purpose to include in the restrictive framework of the guest statute minor children who are by reason of age not capable of exercising responsibility.

The final judgment appealed from is reversed.

CARROLL, DONALD K., Acting C. J., concurs.

RAWLS, J., dissents.

RAWLS, Judge

(dissenting).

Florida Statutes § 320.59 provides in part :

> *“No person*transported by the owner or operator of a motor vehicle as *his guest*or passenger, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or willful and wanton misconduct of the owner or operator of such motor vehicle, * * (Emphasis supplied.)

*459In the instant cause we find Donnie Jean Cook, a person being transported as a guest passenger. The clear mandate of the cited statute, in my opinion, leaves no other recourse than to hold that the minor child is subject to the unequivocal provisions of same.

Brailsford v. Campbell, 89 So.2d 241 (Fla.1956), controls the question presented. In construing the guest passenger statute (F.S. § 320.59 F.S.A.), the Supreme Court, speaking through Mr. Justice Roberts, stated:

> “The Guest Statute in express terms applies to ‘a cause of action for damages * * * for injury, death or loss * * *.’ * * * Guest statutes were designed to relieve owners and operators of automobiles of the consequences of ordinary negligence to guest passengers. * * * It was also clearly intended to apply to actions for ‘injury, death or loss’ involving a minor child who is a guest passenger, since it specifically excepted from its provisions ‘school children * * * being transported to or from schools * * * ’ and thus, by implication, includes within its terms *all other minor children.”*(Emphasis supplied.)

Although the minor child in Brailsford was 18 years old, it is apparent from the majority opinion and the dissenting opinion of Mr. Justice Thomas that the question of consent by a minor child of tender years was weighed by the court in reaching its conclusion. The dissent states, inter alia:

> “ * * * To illustrate the position, let us suppose that a babe in arms, incapable of accepting an invitation to ride as a guest, hence of consciously entering the host-guest relationship, were killed by ordinary negligence of the driver of a car, why should the parents be prevented from recovering.”

Even though the majority of the court was squarely confronted with this concise hypothetical question, it clearly stated that the guest passenger statute includes within its terms all other minor children.

The majority of other jurisdictions that have considered the question are of the view that children of tender years are subject to the provisions of similar statutes. In Lynott v. Sells (1958) 2 Storey 385, 52 Del. 385, 158 A.2d 583, which involved a five year old child, the court stated:

> “The better view, it seems to me, and probably the majority view of American jurisdictions, does not except minors from the operation of Guest Statutes. * * * *”*

Likewise, Tilghman v. Rightor (1947) 211 Ark. 229, 199 S.W.2d 943, held that the guest statute made no exception for minors and that there was no authority to write an exception into the statute.

In Whitfield v. Bruegel (1963) 134 Ind.App. 636, 190 N.E.2d 670, it was stated:

> “There seems no good reason why the natural guardian, usually a parent, could not accept an invitation for its child to ride as a ‘guest’ in a motor vehicle. Horst v. Holtzen (1958), 249 Iowa 958, 90 N.W.2d 41; Buckner v. Vetterick (1954), 124 Cal.App.2d 417, 269 P.2d 67; Chancey v. Cobb (1960), 102 Ga.App. 636, 117 S.E.2d 189; Lynott v. Sells (1958), 2 Storey 385, 52 Del. 385, 158 A.2d 583.”

And to like effect, in Buckner v. Vetterick (1954) 124 Cal.App.2d 417, 269 P.2d 67 (cited in above quotation), a California appellate court in considering a fifteen month old child and a twenty-six month old child, stated:

> “Many decisions of more importance and involving greater hazard are made by parents for their small children daily. An example is the right of a parent to consent to an operation on his child and the right of the surgeon to rely on that consent. See 70 C.J.S. Physicians and Surgeons § 48, p. 968. The same principle prevails where an adult child is an incompetent and has no legally appointed guardian. Farber v. Olkon, 40 Cal.2d 503, 509, 254 P.2d 520. Thus a parent may *460speak and act for his child when the child is legally incapable of acting for itself and others may properly rely on the action of the parent in such circumstances.”

The guest passenger statute has been termed “the worst legal monstrosity on the statute books” and legal writers have constantly and vociferously urged that it be repealed. (See 11 Florida Law Review 287.) The Legislature, however, has not repealed this controversial statute, but to the contrary has continued its provisions as a part of the statutory law of this state. It is not the function of the judicial branch of government to usurp the legislative power.

■ Associate Judge Melvin, speaking for this Court in Jacobs v. State, 248 So.2d 515 opinion filed May 25, 1971, stated: “The law is certain. The duty of this Court is clear.” It is my opinion that the application of the subject statute in the instant case is certain and the clear duty of this Court is to apply the provisions of same as written. I would affirm the judgment of the trial court.