Opinion
11-3-1953
KESLER et al. v. PABST. * Civ. 15560.
William A. Sullivan, San Francisco, for appellants. Partridge, O'Connell & Whitney, San Francisco, for respondent.
KESLER et al.
v.
PABST.
Nov. 3, 1953.
As Modified on Denial of Rehearing Dec. 3, 1953.
See 264 P.2d 42.
William A. Sullivan, San Francisco, for appellants.
Partridge, O'Connell & Whitney, San Francisco, for respondent.
BRAY, Justice.
In an action for damages for personal injuries, both plaintiffs appeal from a judgment in favor of defendant.
Questions Presented:
1. Where subsequent to an accident the husband relinquishes to the wife as separate property all claim to damages recoverable by her, is the husband's negligence in that accident imputable to the wife?
2. Did the court err in refusing certain instructions?
3. Was defendant negligent as a matter of law?
Record.
The action was brought originally by Bertha Kesler and Walter Kesler, husband and wife, and Fontnelle I. Blanchard and E. G. Blanchard, husband and wife, all of whom except E. G. Blanchard were riding in the car driven by Walter and were injured in the collision with defendant's car. There were other defendants but the action was dismissed as to them. Defendant settled with the Blanchards and their causes of action were dismissed, leaving one cause of action by Bertha for damages for her injuries and one cause of action by Walter for the value of his car and for damages for loss of services, etc., of the wife. Defendant answered, pleading contributory negligence of the husband and such negligence impurted to the wife. Thereafter plaintiffs entered into a property settlement agreement in which Walter relinquished all claim and causes of action for the injuries suffered by Bertha in the accident and her expenses in connection therewith and agreed that Bertha's cause of action herein and any recovery therefrom should be her sole and separate property.
Plaintiff Bertha moved for permission to file an amended complaint pleading the agreement. The court denied the motion. At the trial Bertha renewed the motion and it was again denied. However, the court permitted her to amend to increase the amount of damages asked for and permitted Walter to eliminate his claim for damages for loss of the wife's services, and to reduce the amount prayed for in his cause of action. The agreement was admitted in evidence and read to the jury but the court refused to instruct that, in view of the agreement, any contributory negligence of Walter could not be imputed to Bertha. On the contrary, the court instructed that it should be. Bertha's motions for an instructed verdict and judgment notwithstanding the verdict were denied.
The accident occurred at the intersection of Bayshore Highway and Cypress Avenue. Plaintiff Walter was driving his automobile in which plaintiff Bertha and Mrs. Blanchard were riding, westerly across the intersection. His car was struck as he reached the westerly lane of Bayshore by a car driven southerly by defendant. As no attack is made on the sufficiency of the evidence it is unnecessary to detail the facts of the collision. Admittedly the evidence would support a finding either way on contributory negligence. While the jury could have found that defendant was not negligent, the evidence would have supported a contrary finding. For the purposes of this appeal we must assume that the jury found Walter contributorily negligent and imputed his negligence to Bertha.
1. Effect of the Agreement.
It is the general rule in California that in the absence of an agreement to the contrary the cause of action for personal injuries of either spouse and any recovery of damages thereon are community property, and that contributory negligence of one spouse must be imputed to and will bar recovery by the other. Zaragosa v. Craven, 33 Cal.2d 315, 202 P.2d 73, 6 A.L.R.2d 461; Flores v. Brown, 39 Cal.2d 622, 248 P.2d 922; 10 Cal.Jur.2d § 31, p. 698, § 32, p. 699. The reason for imputing negligence of the husband to the wife is that the recovery for her injuries is community property in which the husband shares, and therefore the law will not permit him to benefit by his own wrong. Basler v. Sacramento Gas & Elec. Co., 158 Cal. 514, 111 P. 530. In Franklin v. Franklin, 67 Cal.App.2d 717, 722, 155 P.2d 637, there is language to the effect that a husband's cause of action for damages for his personal injuries is not community property although the money, if recovered during the existence of the marriage, would be community property. This statement is contrary to the rule set forth in all the other cases on the subject since 1913. See, among oters, Johnson v. Hendrick, 45 Cal.App. 317, 321, 187 P. 782; Sanderson v. Niemann, 17 Cal.2d 563, 567, 569, 110 P.2d 1025; 10 Cal.Jur.2d § 31, p. 698. The statement was expressly disapproved in Zaragosa v. Craven, supra, 33 Cal.2d 315, 202 P.2d 73, 6 A.L.R.2d 461.
Under our law there can be no doubt that a husband can relinquish to the wife all claim to the cause of action which she may have for injuries to her person and to the damages she may receive therefrom, and this relinquishment may be made either before or after the accident upon which the cause of action is based occurs. Perkins v. Sunset Tel. and Tel. Co., 155 Cal. 712, 720, 103 P. 190. See also Zaragosa v. Craven, supra, 33 Cal.2d 315, 322, 202 P.2d 73, 6 A.L.R.2d 461, where the court declined to discuss this rule, stating there was no evidence on the subject.
This, then, brings us to the vital question here--plaintiff husband having relinquished all claim to his wife's cause of action and damages, and therefore, the reason given for the rule requiring a husband's contributory negligence to be imputed to the wife having ceased, does not the rule cease? 'When the reason of a rule ceases, so should the rule itself.' Civ.Code, § 3510. We conclude that it does. The precise question has not been passed on in this state, although Flores v. Brown, 39 Cal.2d 622, 248 P.2d 922, comes very close to doing so. There Herman Flores and his minor son were killed in a collision between an automobile driven by Herman and the defendant's tractor. Although the issue was not properly presented, there was evidence from which the jury could have found that the father survived the son. Mrs. Flores brought suit for damages for the wrongful death of the son. Defendant, relying on the rule that a cause of action for the wrongful death of a minor child or for damages suffered by the parents because of injury to such child is community property of the parents, and that ordinarily it is necessary to impute the negligence of one spouse to the other, see 39 Cal.2d page 630, 248 P.2d page 926, contended that the father survived the child and that the father's negligence was imputable to the wife. The wife also sued for her own personal injuries and the defendant also contended that as to these, the husband's negligence should be imputed to her. The court held that due to Herman's death he would receive no unjust enrichment and that his negligence could not be imputed as to either cause of action. The defendant contended, as does the defendant here, that the rights of the parties arising out of an accident must be determined as of the time the cause of action arises. As to this contention the court held, in effect, that it was not the rights of the parties at the time of the accident with which the courts were concerned but their rights at the time of trial. 'Undoubtedly, convenience and certainty in litigation would be served if facts occurring after the accrual of a cause of action could be ignored, but benefits so achieved would be far outweighed by the hardship and injustice of applying a rule designed to prevent unjust enrichment after the reason for it has ceased to exist. See Civ.Code § 3510. When the husband is dead, not only is the reason for the rule imputing his negligence to his wife gone, but to apply it defeats its own purpose. It is but a windfall to a defendant who negligently injures a wife or causes the death of a minor child that recovery may be barred because the wife's husband was also negligent. Although allowing the negligent defendant to escape liability has been considered a lesser evil than allowing the negligent spouse to profit from his own wrong, surely the former evil may not be balanced by the latter when the latter is no longer present.' 39 Cal.2d pages 631-632, 248 P.2d page 927.
We can see no difference between a situation where because of the death of the husband he no longer has an interest in her recovery and one where by a relinquishment he no longer has such interest. As in the first situation, his negligence is no longer imputable to his wife, so in the second situation it cannot be imputable either. Nor can the defendant complain of such a rule. Had the husband prior to an accident relinquished all claim to injuries which his wife might receive should an accident occur, defendant could not raise against her the defense of imputable negligence of the husband. Defendant should not then have the benefit of the defense called a 'windfall' in the Flores case, supra, when at the trial it is found that the husband, so far as interest in the wife's recovery is concerned, is in the same situation he would have been had he made a relinquishment prior to the accident.
It should be noted that California's general rule that contributory negligence of one spouse bars a recovery by the other for his or her own bodily harm, is contrary to the majority rule. See Restatement of Torts, § 487, and 24 Cal.Law Rev. 740.
The trial court should have allowed the amendment to the complaint pleading the relinquishment, and erred in instructing the jury that Walter's negligence, if any, was imputable to Bertha.
2. Other Instructions.
Because of plaintiff Walter's appeal, the instructions will be considered. It is contended that the court erred in refusing to give two of their instructions and in striking out one paragraph in a third, contending that thereby plaintiffs' theory of the case was not presented to the jury.
The first proposed instruction referred to the general duty of all motorists to anticipate meeting other vehicles and to exercise vigilance and control at all times. This was covered by the court's instruction requiring a driver to be vigilant at all times keeping a lookout for traffic and other conditions to be reasonably anticipated, etc. Plaintiffs proposed an instruction incorporating certain sections of the Vehicle Code dealing with the rights of the driver entering a main highway after stopping at its entrance. The court struck from it an additional paragraph to the effect that a driver on a through highway must make ordinary use of his faculties and that a motorist entering a main highway does not do so at his peril. The court at some length discussed the situation when the drivers of two vehicles want the immediate use of the same place on the highway. While the instructions given did not use the phrase to the effect that the highway entering motorist does not enter at his peril, they fully covered the subject. A party may not complain that the court did not instruct in the language requested by him if the subject matter is substantially incorporated in the instructions given. Rednall v. Thompson, 108 Cal.App.2d 662, 239 P.2d 693. The third proposed instruction was a resume of section 552 of the Vehicle Code, the whole of which section the court gave, plus a statement that the driver on an arterial highway is required to keep a proper lookout, a matter completely covered by the instructions given.
We have carefully examined all the instructions given and agree with the trial court's statement that the subject matter of plaintiffs' proposed instructions was fully covered by the instructions given.
3. Was Defendant Negligent as a Matter of Law?
Plaintiff Bertha contends that the evidence demonstrates as a matter of law that defendant was negligent and hence that the trial court should have granted her motion for judgment notwithstanding the verdict and that we should remand the case for trial as to her on the question of damages only. This contention is based upon the testimony of defendant to the effect that he never saw the lights of plaintiffs' car, and the distance he was from the intersection when he first saw plaintiffs' car. He stated he had a clear view of the intersection for approximately 250 yards, and that he first saw plaintiffs' car when he was 65-70 feet from the intersection. At that time plaintiffs' car, coming from defendant's left, had reached approximately the center of Bayshore Highway. The accident took place after dark in the evening. In view of the circumstances shown in the evidence, including the lighting at the intersection and the fact that plaintiffs' car was coming into a lighted area from the side, we cannot say, nor could the trial court, that as a matter of law defendant could or should have seen the lights of plaintiffs' car or should have seen the car before he did. Those are matters for the jury.
That portion of the judgment in favor of defendant as against plaintiff Bertha for her general damages is reversed; the balance of the judgment is affirmed. Each party shall bear his own costs of appeal.
The petition for rehearing is denied.
PETERS, P. J., and FRED B. WOOD, J., concur. --------------- * Subsequent opinion 273 P.2d 257. 1 See section 171c, Civil Code, added in 1951, which gives the wife control, with certain exceptions, of money damages received by her for personal injuries suffered by her.