Cooke v. Tsipouroglou

• Court: United States State Supreme Court (California)
• Writing for the Court: GIBSON
• Citation: 31 Cal.Rptr. 60,59 Cal.2d 660,381 P.2d 940
• Parties: , 381 P.2d 940 Margaret B. COOKE, Plaintiff and Appellant, v. Ann TSIPOUROGLOU et al., Defendants and Respondents. L. A. 27129
• Decision Date: 29 May 1963

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31 Cal.Rptr. 60 59 Cal.2d 660, 381 P.2d 940 Margaret B. COOKE, Plaintiff and Appellant,
v.
Ann TSIPOUROGLOU et al., Defendants and Respondents. L. A. 27129. Supreme Court of California May 29, 1963.
Rehearing Denied June 26, 1963.
Hearing Denied June 26, 1963.

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[381 P.2d 941] [59 Cal.2d 662] Oshman & Brownfield, Los Angeles, and Burton Marks, Beverly Hills, for plaintiff and appellant.

Schell & Delamer and Fred B. Belanger, Los Angeles, for defendants and respondents.

GIBSON, Chief Justice.

Plaintiff brought this action for damages for injuries suffered when the automobile in which she was riding, driven by her husband, Jack Cooke, collided with an automobile owned by one of the defendants and driven, with permission of the owner, by the other defendant. The trial court, sitting without a jury, found that negligence of each of the drivers was a proximate cause of the collision and, on the basis of a finding that the automobile in which plaintiff was riding was owned by plaintiff and her husband 'jointly' but not as community property, concluded that the negligence of her husband was imputable to her and barred her recovery. Plaintiff has appealed from the ensuing judgment for defendants.

When plaintiff and her husband purchased the automobile their application for transfer of registration was made on an official form of the Department of Motor Vehicles, and on the same form was a release of ownership signed by the previous owner. The new certificate of ownership litsted the 'registered owner' as 'Cooke Jack or Margaret.'

Section 17150 of the Vehicle Code, (formerly subdivision (a) of section 402) provides: 'Every owner of a motor vehicle is liable and responsible for the death of or injury to person or property resulting from negligence in the operation [59 Cal.2d 663] of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner, and the negligence of such person shall be imputed to the owner for all purposes of civil damages.'

The decisions applying this provision to situations involving multiple owners of a vehicle have made no distinction between joint tenants and tenants in common, whether or not they are husband and wife, and as to both of these types of ownership have uniformly held that the negligence of one of the owners who was driving the automobile is to be imputed to the other owner if the latter gave permission to drive. (Wilcox v. Berry, 32 Cal.2d 189, 191, 195 P.2d 414; Krum v. Malloy, 22 Cal.2d 132, 134 et seq., 137 P.2d 18; Mooren v. King, 182 Cal.App.2d 546, 552, 6 Cal.Rptr. 362; Rody v. Winn, 162 Cal.App.2d 35, 40, 327 P.2d 579; Caccamo v. Swanston, 94 Cal.App.2d 957, 963, 966-967, 212 P.2d 246.) The existence of such permission is a question of fact and is not necessarily established by proof of the co-ownership. (Krum v. Malloy, supra, 22 Cal.,2d 132, 135-136, 137 P.2d 18.) Although most of these decisions dealt with the liability of a co-owner to a third person on the basis of imputed negligence, the principles involved are equally applicable to the question whether imputed negligence may preclude the co-owner from recovering against the third person. (Cf. Milgate v. Wraith, 19 Cal.2d 297, 299 et seq., 121 P.2d 10; Spendlove v. Pacific Electric Ry. Co., 30 Cal.2d 632, 633-634, 184 P.2d 873.)

The courts have recognized one exception to the general rule applicable to multiple owners of a motor vehicle, holding that where the husband drives a community property automobile, his negligence may not be imputed to his wife whether or not she has consented to his operation of the automobile. (Shepardson v. McLellan, 59 A.C. 93, 97, 27 Cal.Rptr. 884, 378 P.2d 108; Lawson v. Lester, 191 Cal.App.2d 34, 36, 12 Cal.Rptr. 368; Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 154, 219 P.2d

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[381 P.2d 942] 506; Cox v. Kaufman, 77 Cal.App.2d 449, 452-453, 175 P.2d 260; see Wilcox v. Berry, supra, 32 Cal.2d 189, 191, 195 P.2d 414.) The theory is that, because the husband has the entire management of the community property, the wife has no consent to give and no consent by her could add anything to his right. Although the distinction based upon the husband's statutory right of management may not be entirely realistic, the rules are well settled.

[59 Cal.2d 664] The principles discussed above were not altered by the addition of section 163.5 to the Civil Code in 1957, which provides: 'All damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person.' This section abrogated a rule previously followed by the courts (Kesler v. Pabst, 43 Cal.2d 254, 256 et seq., 273 P.2d 257; see Basler v. Sacramento Gas & Elec. Co., 158 Cal., 514, 518, 111 P. 530) that a wife was barred from...