Dorsey v. Barba

• Decision Date: 04 February 1952
• Citation: 240 P.2d 604,38 Cal.2d 350
• Court: California Supreme Court
• Parties: DORSEY et al. v. BARBA et al. S. F. 18369.

Page 604

240 P.2d 604

38 Cal.2d 350

DORSEY et al. v. BARBA et al.

S. F. 18369.

Supreme Court of California, in Bank.

Feb. 4, 1952.

Theodore Golden, J. Bruce Fratis, Oakland, and Julius M. Keller, San Francisco, for appellants.

James F. Galliano, C. Paul Paduck, Oakland, Henry Teichert, Sacramento, Gerald P. Martin, San Francisco, Clark & Heafey, Edwin A. Heafey, Augustin Donovan and Louis B. DeAvila, all of Oakland, for respondents.

GIBSON, Chief Justice.

This action was brought to recover damages for personal injuries sustained by plaintiffs Dorsey and Anderson in an automobile accident. They sought recovery against Vincent Barba as operator, and Catherine Barba as registered owner, of the car which collided with the one in which they were riding. The jury returned verdicts against Vincent but in favor of Catherine, and judgment was entered accordingly. Thereafter, pursuant to a conditional order made on plaintiffs' motion for a new trial, the court, with Vincent's consent, modified the judgment against him by increasing the amount of damages awarded. Plaintiffs, who did not consent to the increase, have appealed from the modified judgment against Vincent and from the judgment in favor of Catherine.

Liability of Catherine

The automobile, which was purchased with community funds, was registered in Catherine's name alone, and she testified that Vincent 'had it put in my name so that I would feel that half of it belonged to me and the other half belonged to him.' Defendants separated, and a property settlement agreement was entered into by which Catherine transferred 'all of her right, title, and interest' in the car to Vincent. The agreement was approved by an interlocutory decree of divorce signed about three months prior to the accident. Before the separation Vincent drove the car to and from work and used it whenever he desired, and it was in his possession when the agreement was made. The car was never driven by Catherine, and she testified that she allowed Vincent to keep it after the separation, that she 'presumed he was using it,' and that she did not ask him to return it or tell him he could not drive it. Catherine did not endorse the ownership certificate until some months after the accident, and she did not give the Department of Motor Vehicles any notice of the intended transfer as provided by statute. See Vehicle Code, §§ 176, 177, 178, 186.

Section 402 of the Vehicle Code, as amended in 1943, imputes to the owner of an automobile liability for the negligence of a person operating the vehicle with the owner's express or implied permission. In the absence of compliance with Vehicle Code sections 178 and 186, a purported transfer of an automobile is ineffective to relieve an owner of the liability imposed under section 402. See Weinberg v. Whitebone, 87 Cal.App.2d 319, 196 P.2d 963; Stewart v. Norsigian, 64 Cal.App.2d 540, 149 P.2d 46, 150 P.2d 554; Leplat v. Raley Wiles Auto Sales, 62 Cal.App.2d 628, 145 P.2d 350; Bunch v. Kin, 2 Cal.App.2d 81, 37 P.2d 744; see, also, Votaw v. Farmers Automobile Inter-Ins. Exch., 15 Cal.2d 24, 97 P.2d 958, 126 A.L.R. 538. Catherine does not dispute this rule but contends that it is inapplicabe to her because she had only a community interest in the car and never was an owner within the meaning of that section. She relies on section 66 of the Vehicle Code, which defines an owner as 'a person having all the incidents of ownership,' and argues that since the exclusive management and control of community personal property is given to the husband by section 172 of the Civil Code, she did not have all of the rights of an owner in the car.

It is clear, however, that a person may be liable as an owner under section 402 even though he does not have 'all the incidents of ownership'. That section provides that every owner of a motor vehicle is liable for imputed negligence except conditional vendors, their assigness, and chattel mortgagees, when those persons are out of possession. The express mention of these exceptions indicates that the framers of section 402 did not intend to incorporate the definition of owner found in section 66. If the intent had been to limit liability to those having 'all the incidents of ownership,' it would not have been necessary to expressly exempt conditional vendors and chattel mortgagees, who, of course, do not possess all the rights of ownership. Catherine, as sole registered owner of the automobile, obviously is included in the term 'every owner,' and since she is not within the exceptions she can avoid liability only by showing she did not actually consent or had no power to consent to Vincent's use of the car.

There can be no question that at the time of the accident Vincent was driving the car with Catherine's permission, but she contends that any consent she may have given was ineffective because she lacked power to give her husband permission to use the car since he had the right of management and control under section 172 of the Civil Code. In support of her position Catherine relies upon Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 219 P.2d 506, where the car involved in the accident was registered in the names of both Mr. and Mrs. Wellman. The court held that the car must be presumed to be community property and that for the purposes of section 402 the negligence of Mr. Wellman in operating the car could not be imputed to his wife because she lacked power to consent to his use of it. Cf. Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260, where the husband was the sole registered owner. There is also language in Wilcox v. Berry, 32 Cal.2d 189, 191-192, 195 P.2d 414, and Caccamo v. Swanston, 94 Cal.App.2d 957, 963, 965, 212 P.2d 246, indicating that when a car is registered in the names of both husband and wife, she may show that she had only a community interest and therefore had no power to give her husband consent to operate the car.

The foregoing cases may be distinguished, however, because none of them involved the situation here present where the car was registered in the wife's name alone and she in fact consented to her husband's use and operation of it. Under these circumstances, the wife should not be permitted to claim that she was without power to give such consent. The requirements for registration were enacted in the interests of public welfare, and one of the purposes for the legislation is to afford identification of vehicles and persons responsible in cases of accident and injury. See Henry v. General Forming, Ltd., 33 Cal.2d 223, 227, 200 P.2d 785, where the registration shows the names of both husband and wife, their identity is disclosed as contemplated by the statute, and, if an accident occurs while the husband is driving, there may be some justification for permitting the wife to explain and amplify the record by showing the true status of her ownership. On the other hand, where, as here, the registration is in the wife's name alone with her knowledge, and she in fact gives her husband implied or express permission to use the car, the statutory purpose would be defeated if she were permitted to contradict the record by showing that, instead of being the sole owner, she had merely a community property interest and no power to give permission. ¹ It appears from the foregoing that the record establishes as a matter of law that Catherine was liable, to the extent provided by section 402, for any injuries to plaintiffs resulting from negligent operation of the car by Vincent. Since the jury determined that plaintiffs' injuries were the proximate result of Vincent's negligence, it could not properly have found for Catherine, and the judgment in her favor must therefore be reversed.

Propriety of Order Increasing Awards

The verdicts against Vincent apparently made no allowance for damages for pain and disfigurement suffered by plaintiffs since the amounts awarded were insufficient to cover medical expenses and loss of earnings. Plaintiffs' motion for new trial was denied on condition that Vincent consent to a modification of the judgment increasing each award in an amount fixed by the court. The figures arrived at exceeded the special damages proved and apparently included some compensation for pain and disfigurement. Vincent agreed to the increases, but plaintiffs' assent was not required or given. The primary question concerns the propriety of the court's action in assessing damages without plaintiffs' consent.

Plaintiffs contend that the amounts fixed by the court are inadequate and that, since the damages are contested and uncertain, the act of the court in increasing the jury's award without their consent constitutes a denial of their right to a jury trial in violation of article I, section 7, of the California Constitution which provides that the 'right of trial by jury shall be secured to all, and remain inviolate'. This section guarantees the right of jury trial as it existed at common law when the Constitution was adopted in 1849. People v. Kelly, 203 Cal. 128, 133, 263 P. 226; People v. Martin, 188 Cal. 281, 285-286, 205 P. 121, 21 A.L.R. 1399; Southern Pacific Land Co. v. Dickerson, 188 Cal. 113, 117-118, 204 P. 576; Cline v. Superior Court, 184 Cal. 331, 339, 193 P. 929; Martin v. Superior Court, 176 Cal. 289, 292-294, 168 P. 135, L.R.A.1918B, 313; see Estate of Bainbridge, 169 Cal. 166, 167, 146 P. 427; Ingraham v. Weidler, 139 Cal. 588, 589-590, 73 P. 415. At that time, apparently, there was no recognized common law practice allowing the court to increase a jury's award in a case involving unliquidated damages. See Dimick v. Schiedt, 293 U.S. 474, 476-482, 55 S.Ct. 296, 297-299, 79 L.Ed. 603; Mayne's Treatise on Damages (2d ed., 1856), pp. 303-305, (9th ed. 1919), pp. 571, 580; Sedgwick, Treatise on Damages (1847), pp. 19, 21, footnote p. 582, cf. (4th ed. 1868), pp. 710-717.

The constitutional guarantee does not require adherence to the letter of common law practice, and...