Opinion
Hearing Granted Oct. 31, 1962.
Opinion vacated 27 Cal.Rptr. 884, 378 P.2d 108.
C. Paul DuBois, Los Angeles, for appellants.
King & Mussell and Stanley Mussell, Jr., San Bernardino, for respondents.
GRIFFIN, Presiding Justice.
This is an action to recover damages from defendants-respondents Milford George McLellan and his wife for the death of Norman H. Shepardson, husband of plaintiff-appellant Marvel I. Shepardson and father of the four minor plaintiffs-appellants, Evelyn I. Shepardson, Norman H. Shepardson, Linda D. Shepardson and Gregory W. Shepardson, appearing through their mother as guardian ad litem.
A collision occurred on September 20, 1959, at about 5:35 p. m., on U.S. Highway 60-70, approximately 30 miles west of Blythe, near Desert Center, resulting in the death of Mr. Shepardson, the driver of It is alleged in the complaint that defendant, Mr. McLellan, negligently and wrongfully drove his Ford upon the westbound lane in approaching the truck driven by plaintiff Mr. Shepardson and that the trucks collided head-on in the westerly lane of said highway, and as a result thereof Mr. Shepardson was killed and his truck was completely destroyed. Mrs. Shepardson claims damages for loss of her husband's comfort, society, protection, support and for funeral expenses and general damages. The children seek damages for loss of society, protection and support. In an amended or supplemental complaint, each seeks similar damages, alleging that defendant, Mr. McLellan, did willfully and with wanton and reckless disregard for the safety of plaintiffs, after discovering the presence of deceased's car, continue to so drive without attempting to avert injury to him, and as a result Mr. Shepardson was killed and his vehicle completely wrecked. Defendants answered and denied generally these allegations and alleged contributory negligence on the part of Mr. Shepardson.
According to the pretrial order, the issues are: (1) the question of negligence of the defendant; (2) contributory negligence of decedent; (3) nature, extent and proximate cause of plaintiffs' damages; (4) whether the negligence of defendant Milford McLellan should be imputed to defendant wife; (5) whether an agency relationship existed between husband and wife (McLellans); and (6) the question of gross negligence, willful and wanton misconduct of Milford McLellan. It is also noted that defendants contend that the McLellan truck was a community property vehicle, but the husband did not operate it as the permittee or agent of the wife. The jury returned a verdict in favor of plaintiffs Shepardson for $43,750, in favor of the administratrix for $1,933, and in favor of the guardian ad litem for $48,000, and against defendant Milford McLellan only.
The record comes to us on the settled statement in lieu of a reporter's transcript. It recites that:
'The case proceeded to trial and, during trial, defendant Alva Jo McLellan made a motion for nonsuit against plaintiffs which was argued, submitted and decided against plaintiffs and each of them. Only plaintiffs have appealed and this portion of the appeal is from the nonsuit and judgment entered thereon in favor of defendant Alva Jo McLellan.'
However, plaintiffs' notice of appeal recites that plaintiffs appeal from part of the judgment entered on December 19, 1960, and:
'* * * more particularly from those parts which were interlocutory orders and (i) which sustained the defendant's Demurrer to Supplement to Complaint * * * Second Supplement to Complaint * * * and withdrawal from the jury of determination of the issue of wilful misconduct and gross negligence, and being a minute order of December 19, 1960, and upon the judgment entered upon said minute orders, and (ii) also from that particular order granting a non-suit in favor of Alva Jo McLellan and withdrawing from the determination by the jury the issue of principal and agent between the defendants and the imputation of negligence of Milford George McLellan to Alva Jo McLellan; and being a minute order dated December 15, 1960 * * * and from all minute orders and judgment relating to each of the foregoing.'
It recites that plaintiffs are not appealing from the remainder of the judgment or prior interlocutory orders.
The only argument on appeal by plaintiffs in the settled statement and in their briefs is confined to the claimed error of the trial court in its denial of recovery as against the defendant wife by way of nonsuit in What record we have before us sets forth procedure we have not heretofore encountered. The final judgment on the verdict makes no mention of a judgment of nonsuit being granted as to defendant wife. From the clerk's transcript before us, the minutes of the court reflect the following entry on December 14, 1960, after plaintiffs rested their case:
'Defendant moves court for non-suit on behalf of defendant, Alva Jo McLellan.'
A minute order of December 15, 1960 recites:
'Motion for non-suit as to Alva Jo McLellan, is granted.
'Motion for non-suit on the Cause of Action based on wilful misconduct of Milford George McLellan, is denied.'
After both defendants and plaintiffs rested their case, defendants' counsel moved the court for a directed verdict as to the seventh cause of action (willful misconduct) and on December 19, in chambers, counsel for defendants moved to allow them permission to file a demurrer to plaintiffs' supplemental complaint and moved for summary judgment in reference to willful misconduct. The several motions were argued, and it was noted: 'Demurrer is ordered filed' and 'Demurrer is sustained without leave to amend.' What happened to the motion for summary judgment and judgment on the pleadings is not reflected by the minutes. We will limit our discussion to the propriety of the minute order granting a nonsuit, which is appealable. When an order of nonsuit terminates the action as to a party, the minute entry constitutes a final judgment and is appealable, unless the minutes reflect an intent that a formal written judgment is to be prepared and signed. (McColgan v. Jones, Hubbard, etc., Inc., 11 Cal.2d 243, 246, 78 P.2d 1010.) Here, no such intent appears.
The claimed liability of Alva Jo McLellan is predicated on the established fact that she was part-owner of the truck by reason of her community interest therein with her husband, or was a principal for whom the driver-agent acted, who had given her consent to defendant, Milford McLellan, and that he drove the truck at the time and place for defendant wife.
EVIDENCE
The evidence relied upon by plaintiffs in support of the argument as agreed upon by the parties is that Mr. McLellan, testifying under Code of Civil Procedure, section 2055, said that he married Alva Jo on February 10, 1953, and that they resided together thereafter; that she was not employed except for being a housewife and he worked for the Kaiser Steel Company in Fontana; that about April 1959 Mr. McLellan purchased the truck with community funds and also by borrowing money from his employer's credit union, to be repaid by payroll deductions; that on September 20, 1959, Mr. McLellan, under a prearranged plan with three other men, did load certain equipment upon two vehicles, one of which was the 1956 Ford truck driven by Mr. McLellan in this accident; that Mr. McLellan told Alva Jo McLellan that he:
'Q. And before you started on that particular trip, isn't it true that you told Alva Jo you wanted to take that truck?
'A. I don't have to tell her.
'Q. I am not asking what you have to do. I am asking for a yes or no answer, Mr. McLellan. Isn't it a fact you told her you were going to take that truck?
'A. That's right.' Mr. McLellan further testified that he then proceeded to the area near Blythe, California, to look for and engage in temporary work for compensation during a period while Kaiser Steel employees were on strike, and that he was intending to travel from Fontana, California to the Blythe area for purposes of earning funds with which to support himself and Alva Jo McLellan; that he and Alva Jo McLellan have two vehicles in the family, the other being a family car; that Mr. McLellan was the registered owner of this particular truck and his wife was not with him on the occasion; that he was accompanied by another workman and was carrying tools and equipment in the truck. This is the only evidence presented in support of the argument. We conclude that a complete answer to the question is in the case of Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260, where it was held that the effect of Civil Code, sections 161a and 172 is to continue in the husband the same power of management and control of the community property that he had before the enactment of section 161a, defining the interests of the spouses in such property; that since the husband has the entire management and control of the community property (Civ.Code, sec. 172), no consent of the wife, express or implied, to his use or occupation of the community vehicle, registered in his name, can add anything to his rights in that respect, and she may not be held liable under Vehicle Code, section 402 (now Vehicle Code, section 17151) for injuries to another person resulting from the husband's negligence in the operation of the vehicle; that the fact that a husband was transporting his wife to work while driving the community vehicle could not support an inference that he had yielded to her the right to control the vehicle, and she could not be held liable for an accident on the theory that he was her agent in driving the vehicle.
There is no record before us as to the evidence surrounding the happening of the accident, except that Mr. McLellan was driving and his truck became involved with another truck driven by Mr. Shepardson upon U.S. Highway 60-70. Therefore, there is no record showing negligence or willful misconduct of the defendant driver. Any negligence on the part of the husband driver could not be imputed to the wife under the circumstances related.
We conclude that this holding sufficiently disposes of the other matters attempted to be raised in the notice of appeal.
Order granting nonsuit affirmed.
SHEPARD and COUGHLIN, JJ., concur.