Cooke v. Tsipouroglou

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

Page 60

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.

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 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 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.

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 recovery for personal injuries in an action against a third person where her husband was guilty of contributory negligence. The former rule, however, unlike the principles derived from section 17150 of the Vehicle Code, was not dependent upon ownership of property but rather upon the community character of the wife's tort action under the law then existing, and the fact that section 163.5 terminated the community status of the wife's cause of action for personal injuries does not indicate an intent to also preclude imputation of negligence on the basis of permission to drive given by one joint tenant or tenant in common to another.

It is clear that the automobile was not owned by plaintiff and her husband as joint tenants. Such a tenancy in personal property may be created only by a 'written transfer, instument, or agreement,' and it must be 'expressly declared in the * * * transfer to be a joint tenancy.' (Civ.Code, § 683; California Trust Co. v. Bennett, 33 Cal.2d 694, 697-698, 204 P.2d 324 (applying the rule to husband and wife).) There was no writing expressly declaring a joint tenancy, and the word 'or,' which appears between the names of the purchasers in the registration documents, cannot properly be interpreted as an expression of such a declaration. ¹ With the possibility of a joint tenancy thus eliminated and since there is no claim that partnership property was involved, it necessarily follows that the automobile was either community property or property held by tenants in common. (CIV.CODE, S 682. )²

Plaintiff and her husband testified that the automobile was owned by them, that it was purchased out of community funds, and that it was their only car. Her husband testified that his intention was that it be community property and, when asked how he 'took title' to it, replied, 'We put it in our name, my wife and I.' In opposition to this testimony, (as we shall see, is the presumption in section 164 of the Civil Code that plaintiff took her interest in the automobile as a tenant in common.

Section 164 of the Civil Code provides in part: '* * * all other personal property (i. e., personal property not defined as separate property) wherever situated acquired during the marriage by a married person while domiciled in this State, is community property; but whenever any real or personal property, or any interest therein or encumbrance thereon, is acquired by a married woman by an instrument in writing, the presumption is that the same is her separate property, and if acquired by such married woman and any other person the presumption is that she takes the part acquired by her, as tenant in common, unless a different intention is expressed in the instrument; except, that when any of such property is acquired by husband and wife by an instrument in which they are described as husband and wife * * * the presumption is that such property is the community property of said husband and wife. * * *' (Italics added.) ³

This case does not come within the community property exception in section 164 relating to property 'acquired by husband and wife by an instrument in which they are described as husband and wife,' because there was no instrument containing such a description. The only other portion of the section referring to community property is the general provision concerning property acquired after marriage by either husband or wife, but it is obvious that the application of this provision...