Carver v. Ferguson

• Decision Date: 27 January 1953
• Citation: 254 P.2d 44
• Court: California Court of Appeals Court of Appeals
• Parties: CARVER v. FERGUSON. Civ. 8171.

Page 44

254 P.2d 44

CARVER v. FERGUSON.

Civ. 8171.

District Court of Appeal, Third District, California.

Jan. 27, 1953.

Hearing Granted March 26, 1953. ^*

Miller, Kroloff & Brown, Stockton, for appellant.

Neumiller, Ditz, Beardslee & Sheppard and Joseph W. Diehl, Stockton, for respondent.

PEEK Justice.

On May 2, 1950, Eleanor Carver was injured while riding in the automobile of William Ferguson, which he was then driving. She filed a complaint for damages on August 15, 1950, for personal injuries against Ferguson. On March 17, 1951, prior to the time set for trial of the matter, plaintiff and defendant intermarried, and ever since that date they have been husband and wife. On November 19, 1951, the trial court granted defendant's motion for dismissal of the action upon the ground of the marital status of the parties. From the judgment of dismissal, plaintiff appeals, presenting for determination the question of whether a wife may maintain, against her husband, an action for a tort which occurred prior to their marriage. The agreed statement of facts upon which the appeal is taken shows that the defendant had public liability insurance at the time of the accident, although the materiality and relevance of this factor was and is expressly denied by the defendant.

Counsel have ably argued their opposing contentions, respondent relying upon the common law rule that the wife may not sue the husband in tort, and appellant contending that the aforesaid rule is neither applicable nor the true state of the law in California as indicated by the several statutory changes to Code of Civil Procedure, section 370, made after the decision in Peters v. Peters, 1909, 156 Cal. 32, 103 P. 219, 23 L.R.A.,N.S., 699, However, it is our view that the matter is governed by other principles.

The cause of action sought to be asserted by plaintiff, being a right to recover payment for damages, is a chose in action, as defined by Civil Code, section 953, which provides that: 'A thing in action is a right to recover money or other personal property by a judicial proceeding.' Under this section, it was held in Everts v. Will S. Fawcett Co., 1937, 24 Cal.App.2d 213, 74 P.2d 815, 816, that a cause of action for tort, like a cause of action arising from breach of contract, is a 'thing in action'. See, also, Mortimer v. Young, 1942, 53 Cal.App.2d 317, 127 P.2d 950, and McFadden v. Santa Ana, Etc. Ry. Co., 1891, 87 Cal. 464, 25 P. 681, 11 L.R.A. 252. A thing in action is characterized by both Civil Code, section 14, subsection 3, and Code of Civil Procedure, section 17, subsection 3, as personal property. Section 1 of each of these code sections defines the general term 'property' as including both real and personal property. Thus, in Scott v. McPheeters, 1939, 33 Cal.App.2d 629, at page 632, 92 P.2d 678, 680, 93 P.2d 562, this court said that property includes the 'right to compensation for personal injuries wrongfully inflicted by the wilful or negligent acts of another person.' Hence it is apparent that the cause of action which the wife was here attempting to pursue constitutes property. Such further proof of this conclusion as may be necessary appears from the following Civil Code sections:

654: 'The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this code, the thing of which there may be ownership is called property.'

655: 'There may be ownership of * * * all obligations * * *.'

1427: 'An obligation is a legal duty, by which a person is bound to do or not to do a certain thing.' (1458): 'A right arising out of an obligation is the property of the person to whom it is due * * *.'

Since that property accrued to appellant at the moment of the commission of the wrong, it becomes equally clear that the cause of action was her separate property. Civil Code, section 162, provides, in part, that: 'All property of the wife, owned by her before marriage, * * * is her separate property.' The cause of action here pleaded is the alleged breach by respondent of a duty of care owing by him to appellant, which breach caused injury to appellant; these matters are all referable to a particular moment in time when that breach and injury occurred. Whatever obligation might be found to exist upon the respondent in favor of the appellant arose at the moment of breach and injury. Therefore, the cause of action, which constituted property arose and vested in appellant at the time of the accident, and was 'owned' by her from that day forward. She thus owned it prior to her marriage to respondent and it constitutes her separate property.

The character of property as separate or community is determined by its status as of the time of acquisition, hence any subsequent change in appellant's marital situation could have no effect upon the separate nature of property which she owned prior to marriage, and which followed her into the marriage. Finley v. Winkler, 99 Cal.App.2d Supp. 887, 222 P.2d 345; 3 Cal.Jur. 10-Yr.Supp. 505. No further authority than Civil Code, section 157, providing that 'Neither husband nor wife has any interest in the property of the other * * *'...