33 Cal.2d 315, 5950, Zaragosa v. Craven

Docket Nº:5950
Citation:33 Cal.2d 315
Opinion Judge:[10] Schauer
Party Name:Zaragosa v. Craven
Attorney:[7] C. Ray Robinson, Willard B. Treadwell and Margaret A. Flynn for Appellant. [8] Stammer & McKnight and James K. Barnum for Respondent.
Case Date:January 25, 1949
Court:Supreme Court of California
 
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Page 315

33 Cal.2d 315

JENNIE ZARAGOSA, Appellant,

v.

JERRY ALBERT CRAVEN, Respondent.

Sac. No. 5950.

Supreme Court of California

Jan. 25, 1949

In Bank.

Page 316

COUNSEL

C. Ray Robinson, Willard B. Treadwell and Margaret A. Flynn for Appellant. Stammer &amp McKnight and James K. Barnum for Respondent

OPINION

SCHAUER, J.

Plaintiff appeals from an adverse judgment in this action brought by her to recover for personal injuries suffered in a collision between an automobile operated by defendant and one operated by plaintiff's husband, in which plaintiff was riding. A prior action brought by the husband against the same defendant to recover for his own personal injuries suffered in the same accident resulted in a final judgment against the husband. The question for decision is whether the issues involved in this action brought by the wife are rendered res judicata by the prior judgment against her husband. We have concluded that the wife was in privity with her husband in the prior litigation and that inasmuch as the issues which she seeks to litigate are the same as those decided adversely to the husband in the earlier action, the determination there is binding on plaintiff here and the judgment in defendant's favor, so holding, must be affirmed.

The collision between the automobile operated by plaintiff's husband, in which plaintiff was riding, and the automobile driven by defendant occurred in May, 1946. On June 3, 1946, plaintiff's husband, Joe Zaragosa, filed an action against defendant to recover for his own personal injuries alleged to have been caused by the collision. Approximately three weeks later plaintiff filed the instant action, in which she seeks damages against defendant for personal injuries allegedly received by her in the same collision. Defendant answered in each action, denying negligence on his part and alleging contributory negligence on the part of the husband, Joe Zaragosa.

On October 29 and 30, 1946, the action first filed was tried before a jury; that trial resulted in a verdict and judgment for defendant. No appeal was taken, and the judgment became final. Thereafter, on March 12, 1947, defendant, with leave of court, filed a supplemental answer to plaintiff's complaint herein; in it he alleges that the judgment against the husband

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in the first action constitutes an estoppel and renders res judicata against plaintiff and in favor of defendant the issues of defendant's negligence, the husband's contributory negligence, and proximate cause, raised by the pleadings in each of the two actions. By stipulation, the plea of res judicata was tried as a special issue by the court sitting without a jury. Over plaintiff's objection the record in the action brought by the husband was introduced into evidence. The court found in defendant's favor, judgment was entered accordingly, and plaintiff appeals.

Section 1908 of the Code of Civil Procedure provides, so far as here material, that a judgment of a court or judge of this state having jurisdiction to pronounce it, is "in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding." This court has declared that "In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?" (Bernhard v. Bank of America (1942), 19 Cal.2d 807, 813 ; see, also, Estate of Clark (1923), 190 Cal. 354, 360-361 .)

It is not disputed that the issues of defendant's negligence and of the husband's contributory negligence were directly involved in the first action and that one or both of such issues were by the jury determined in defendant's favor. Plaintiff's complaint in the instant case is, of course, predicated upon alleged negligence by defendant, and, further, plaintiff concedes that, unless her recovery would be her separate property (a suggestion of which proposition is hereinafter discussed), contributory negligence by her husband would under the community property law of this state bar her recovery of damages for her personal injuries. (See Basler v. Sacramento Gas & Elec. Co. (1910), 158 Cal. 514, 518 [Ann.Cas. 1912A 642]; Solko v. Jones (1931), 117 Cal.App. 372, 374 , and cases there cited.) It is therefore apparent that the issues of negligence and contributory negligence, at least one of which, it is shown, was decided in defendant's

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favor in the prior adjudication, are identical with those issues as presented in the instant action. (See Todhunter v. Smith (1934), 219 Cal. 690, 694-695 , and authorities there cited; Sutphin v. Speik (1940), 15 Cal.2d 195, 201-202 .) It is likewise not disputed that there was a final judgment on the merits in the prior adjudication.

Thus the remaining question is whether the wife--the plaintiff in the present action, against whom the plea of res judicata is asserted--was a party or in privity with a party to the prior action. It is our view that under well-established law the wife, although she was not named as a party in the action brought by her husband, was in privity with him and, hence, substantially in the legal position of a real party in interest in that litigation and she is bound by the judgment rendered therein in defendant's favor.

The term "privity" denotes mutual or successive relationship to the same rights or property. (California State A. Assn. v. Brunella (1936), 14 Cal.App.2d 464, 466 ; 15 Cal.Jur. section 220, p. 191; 30 Am.Jur. 957-958; 50 C.J.S. 324-325.) Thus, in Cutting v. Bryan (1929), 206 Cal. 254, 258 , it was held that where a husband, but not the wife, had been made a party defendant in an action concerning the title to certain land which the wife alleged was community property, the husband "was representing the community interest of himself and also of his wife in said property, and that as to such interest the ... [wife] was in privity with her husband and was represented in said action by him as fully as though she had been expressly made a party thereto. [Citations.]" (See, also, Murdock v. Eddy (1940), 38 Cal.App.2d 551, 554 ; Atchison T. & S. F. Ry. Co. v. Nelson (1915), 9 C.C.A., 220 F. 53 [135 C.C.A. 621].) And in 30 American Jurisprudence at page 957 (section 225), it is declared that "Who are privies requires careful examination into the circumstances of each case as it arises. In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right." The "legal right" here, to recover community property, depends in both cases on negligence of the defendant and lack of contributory negligence on the part of the husband in relation to the one accident.

Plaintiff concedes that (at least in the absence of an agreement to the contrary) the damages recovered for the personal injuries of either husband or wife, suffered during their marriage,

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are community property (see Civ. Code, section 162; Moody v. Southern Pacific Co. (1914), 167 Cal. 786, 789-791 ; Giorgetti v. Wollaston (1927), 83 Cal.App. 358, 362 ; Solko v. Jones (1931), supra, 117 Cal.App. 372, 374). With particular reference to injuries to the wife, but equally applicable in its relevant principle to injuries sustained by the husband, it is said in Johnson v. Hendrick (1919), 45 Cal.App. 317, 321 , that "Prior to the amendment of section 370 of the Code of Civil Procedure, in 1913 [Stats. 1913, p. 217], in an action...

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