Dorsey v. Barba

• Citation: 226 P.2d 677
• Court: California Court of Appeals
• Decision Date: 12 January 1951
• Parties: DORSEY et al. v. BARBA et al. Civ. 14381.

Page 677

226 P.2d 677

DORSEY et al. v. BARBA et al.

Civ. 14381.

District Court of Appeal, First District, Division 1, California.

Jan. 12, 1951.

Hearing Granted March 12, 1951. ^*

Theodore Golden, J. Bruce Fratis, Oakland, Julius M. Keller, San Francisco (of counsel), for appellants.

James F. Galliano, C. Paul Paduck, Oakland (Henry Teichert, Berkeley, of counsel), for respondent, Vincent Barba.

Clark & Heafey, Edwin A. Heafey, Augustin Donovan and Louis B. DeAvila, all of Oakland, for respondent, Catherine Barba.

In an action for personal injuries, tried by a jury, plaintiffs appeal from a judgment in favor of defendant Catherine Barba, and also from the judgment as modified after motion for new trial, increasing without the consent of plaintiffs, the judgment against defendant Vincent Barba.

The portion of this opinion dealing with the appeal from the judgment in favor of Catherine Barba was prepared by Justice BRAY, and all of the members of the Court agree with that portion of the opinion. The second portion of this opinion dealing with the subject of additur was prepared by Presiding Justice PETERS and Justice WOOD concurs, with Justice BRAY dissenting.

Questions Presented.

Two questions are presented: (1) Where a community automobile registered in the wife's name is awarded to the husband in a property settlement agreement and in a divorce decree, and the automobile is not re-registered under the Vehicle Act, is the wife thereafter an 'owner' within the meaning of sections 402 and 178 of the Vehicle Code? (2) Has the trial court, over the objection of plaintiff, in personal injury actions, the power of additur?

Facts.

It is conceded that the implied finding of the jury that the negligence of defendant Vincent Barba was a proximate cause of the accident, and that plaintiffs were not contributively negligent, is supported by substantial evidence. The two plaintiff sisters were riding in a car driven by one Schuppert (a plaintiff in this action against whom the jury returned a verdict, and who is not a party to this appeal). At a certain intersection in Oakland, the Schuppert car collided with one driven by defendant Vincent. Plaintiffs were thrown from the car and sustained injuries. They brought suit against Vincent, as driver of the Barba car, and against Catherine, alleging that she was its owner and that Vincent was driving with her permission. The jury verdicts will be discussed later.

Ownership--Appeal from Judgment in Favor of Catherine Barba.

BRAY, Justice.

Plaintiffs appeal from the judgment in favor of Catherine on the ground that under the evidence and section 402 of the Vehicle Code, she was an 'owner' of the car, and hence Vincent's negligence must be imputed to her as a matter of law. The accident occurred May 1, 1948, at which time the car was still registered in Catherine's name. Catherine and Vincent had been husband and wife, and approximately six months before their separation, the automobile in question was purchased. It was paid for out of the joint earnings of the parties, and the ownership certificate (pink slip) was taken in the name of Catherine alone. Catherine testified that this was done so she would feel that half of it belonged to her. It was considered as community property by the parties. Both the pink slip and the car were always in Vincent's possession and control. He drove the car to and from work and used it whenever he desired. Catherine had never driven the car. In fact, she could not drive and had no driver's license. The parties separated, and on January 24, 1948, entered into a property settlement agreement, which settled all of their property rights. One of the provisions of the agreement was a transfer from Catherine to Vincent of all her interest in the car. Thereafter, and on February 9, 1948, Catherine obtained an interlocutory decree of divorce, which decree, by reference, incorporated the property settlement agreement, approved it and ordered each of the parties 'to do those things required of them to be done * * *.' Catherine did not endorse the pink slip (Vincent testified that he mislaid it), nor did she comply with section 178 of the Vehicle Code until approximately two months after the accident, when Vincent sold the car. Vincent testified that after the divorce, Catherine saw him using the car and did not object; that the court had given him the car and she could not object. Catherine testified that after the divorce she had not seen him drive the car but presumed he was driving it; that she never gave her consent or permission to his using the car. On cross-examination of Vincent it was brought out that, at a justice's court trial arising out of the same accident, he had testified that the car at the time of the accident belonged to Catherine.

The trial court considered the matter as a question of fact to be determined by the jury. It first gave full instructions on ownership and the requirements of consent, express or implied, and then instructed that the jury must determine whether Catherine was an owner, and if the jury found she was, then whether she consented to the use of the car by Vincent. Plaintiffs do not question these instructions. As the jury found for Catherine, it evidently found against plaintiffs on both questions.

In Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 219 P.2d 506, it was held that where an automobile is purchased with community funds something more than the fact that the wife's name appears as owner on the registration certificate (pink slip) is required to overcome the presumption that the automobile is community property. Placing her name on the pink slip does not constitute acquisition of property by an 'instrument in writing' which section 164 of the Civil Code requires to raise the presumption of separate property. But even if there were a presumption, raised by the pink slip, that the car belonged to Catherine, the evidence is sufficient to rebut the presumption, and to support the implied finding that the car actually was community property at the time of the property settlement agreement. Thus, the real question to be determined here is, was the transfer of the community property interest from wife to husband one which required a strict compliance with section 178 in order to relieve the former wife of liability under section 402? Section 402 provides: 'Every owner of a motor vehicle is liable' for the death or injury to persons or property resulting from the negligent operation of the vehicle by any person using or operating it with the 'permission, express or implied' of such owner. Section 66 provides: "Owner' is a person having all the incidents of ownership, including the legal title of a vehicle whether or not such person lends, rents or pledges such vehicle; the person entitled to the possession of a vehicle as the purchaser under a conditional sale contract; * * *.'

Section 178 provides that 'An owner who has made a bona fide sale or transfer of a vehicle and has delivered possession thereof to a purchaser' shall not be deemed the owner for purposes of civil liability for its operation by another when the owner, in addition to sale or transfer and delivery of possession has either (1) made proper indorsement and delivery of the certificate of ownership and delivered the certificate of registration as provided in the code, or (2) has notified the department of motor vehicles of such sale or transfer in the manner set forth in the code. Section 186 of the Vehicle Code provides that no transfer of any interest in a motor vehicle shall pass nor any attempted transfer be effective until the requirements of that section, which are somewhat similar to those of section 178, have been complied with.

It is well settled in California that a conditional vendor of a motor vehicle is still liable as 'owner' for an accident which occurs before he has complied with the registration provisions of the code. Weinberg v. Whitebone, 87 Cal.App.2d 319, 196 P.2d 963. Plaintiffs contend that the transfer of the wife's interest in the autobile to the husband is the same, so far as Vehicle Code compliance is concerned, as the transfer by a conditional vendor to the vendee. They rely on Wilcox v. Berry, 32 Cal.2d 189, 195 P.2d 414, in which the car was registered in the name of the husband and/or wife. The husband was driving and it was sought to impute negligence to the wife. The court held the wife liable, saying that the evidence supported the implied finding that the automobile was owned jointly and it was a question of fact whether the car's operation was with her consent. That case is distinguishable from ours, in that first, the car was jointly owned, where here, it was community property; secondly, in that case there was no transfer between husband and wife, where here, there was such a transfer as well as a court confirmation of that transfer; and thirdly, there, the evidence justified a finding of consent, while here the evidence supports a finding of no consent, unless, as contended by plaintiffs, the law implies a consent; and fourthly, there, the court expressly stated that if the car had been community property there could be no consent of the wife, since the husband is the manager of the community property. This statement was based on the authority of Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260. In that case the auto was community property. At the time of the accident the husband was driving and the wife was riding in the car. He was taking her to her place of employment. After pointing out that section 172 of the Civil Code gives the husband the entire management and control of the community property, the court said that 'no consent of the wife, express or implied, to her husband's use or operation of the community automobile could add anything as a matter of law or of fact to his rights in that respect, which are already plenary and complete. Under secs. 161a and 172, Civ.Code,...