Finley v. Winkler

• Decision Date: 15 September 1950
• Citation: 99 Cal.App.2d Supp. 887,222 P.2d 345
• Court: California Superior Court
• Parties: 99 Cal.App.2d Supp. 887 FINLEY et al. v. WINKLER. Civ. A. 7417. Appellate Department, Superior Court, Los Angeles County, California

Page 345

222 P.2d 345

99 Cal.App.2d Supp. 887

FINLEY et al. v. WINKLER.

Civ. A. 7417.

Appellate Department, Superior Court, Los Angeles County, California.

Sept. 15, 1950.

Forgy, Reinhaus & Forgy, and Mark A. Soden, all of Santa Ana, for appellants.

John H. Poole, Pasadena, for respondent.

STEPHENS, Judge.

Plaintiff Lyle Finley was the driver and plaintiff Ruth Hershey was a passenger in an automobile which collided with another car driven by defendant. Plaintiffs brought this action alleging negligence on the part of defendant, and the latter answered alleging contributory negligence on the part of driver Finley, and also filed a cross-complaint. The case was tried by the court without a jury, findings were waived, and judgment was that neither plaintiffs nor defendant recover judgment for damages. Plaintiffs appeal. Sometime after the accident and after filing of the complaint, but before trial, plaintiffs Finley and Hershey intermarried.

It appears from the settled statement that after trial and submission, the following 'opinion' was rendered by the trial judge on November 22, 1949:

'The Court finds from all the circumstances and from the evidence given at the trial of this case, that the operators of both vehicles were each guilty of negligence which contributed to the happening of the accident in question.

'The plaintiff Ruth Hershey, now being the wife of the plaintiff Lyle V. Finley, his negligence is imputed to her, which also bars her recovery.

'The judgment will therefore be: That the plaintiffs will take nothing by reason of their complaint on file herein and that defendant will take nothing by reason of his cross-complaint on file herein. Neither party to recover their costs of Court. See 2 Cal.Jur.Supp. 610.'

Two problems are presented upon this appeal: (1) may this 'opinion' of the trial court be considered by us for the purpose of discovering the process by which the trial judge arrived at his conclusions and, (2) the cause of action having accrued in favor of Ruth Hershey, a single woman, would any award of damages therefor made to her after her marriage be community property and consequently be defeated by reason of the contributory negligence of her then husband?

Upon the first point, we have concluded that in such a situation as that herein presented the rule that it will be presumed by a reviewing court that the trier of facts made all determinations of fact and that all findings should be implied which are necessary to support the judgment or order and which would find support in the evidence has now been relaxed at least to the extent that we may now consider the written opinion of the trial judge to determine the process by which judgment was reached or the basis upon which the court acted. This was clearly decided by the Supreme Court in Union Sugar Co. v. Hollister Estate Co. 1935, 3 Cal.2d 740, at page 750, 47 P.2d 273; and, as said in Guardianship of Gestner's Estate, 1949, 90 Cal.App.2d 680, at page 686, 204 P.2d 77, at page 81, now 'is well established.' In Satchell v. Ind. Acc. Comm., 1949, 94 Cal.App.2d 473, 475, 210 P.2d 867, 868, the court, speaking through Mr. Presiding Justice Shinn, stated the principle broadly, as follows: 'The rule that it will be presumed by a reviewing court that the trier of facts made all determinations of fact, and that all findings should be implied which are necessary to support the judgment or order, and which would find support in the evidence, has limitations which a reviewing court cannot conscientiously ignore. If the record clearly shows that the trier of facts declared that a state of facts entering into his decision had or had not been established by the evidence, it would be an absurd reliance upon a fiction, and a grave injustice, for a reviewing court to imply a finding in support of the judgment or order contrary to such oral declaration.' See also Fields v. Michael, 1949, 91 Cal.App.2d 443, 446, 205 P.2d 402; Trans-Oceanic Oil Corp. v. Santa Barbara, 1948, 85 Cal.App.2d 776, 790, 194 P.2d 148; Noble v. Kertz & Sons, 1945, 72 Cal.App.2d 153, 158, 164 P.2d 257.

As the opinion of the trial judge states that 'The Court finds from all the circumstances and from the evidence given at the trial of this case, that the operators of both vehicles were each guilty of negligence which contributed to the happening of the accident in question'; and 'The plaintiff Ruth Hershey, now being the wife of the plaintiff Lyle V. Finley, his negligence is imputed to her, which also bars her recovery,' we are now brought to the second problem.

A reading of the following several Civil Code sections bearing upon the subject discloses beyond question that the cause of action in favor of plaintiff Ruth Hershey was property: Section 14, Civil Code, provides that '1. The word 'property' includes property real and personal. * * * 3. The words 'personal property' include money, goods, chattels, things in action, and evidences of debt'; section 953, 'A thing in action is a right to recover money or other personal property by a judicial proceeding'; section 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'; section 655, 'There may be ownership of * * * all obligations * * *'; section 1427, 'An obligation is a legal duty, by which a person is bound to do or not to do a certain thing'; and section 1458, 'A right arising out of an obligation is the property of the person to whom it is due * * *.' In Scott v. McPheeters, 1939, 33 Cal.App.2d 629, 632, 92 P.2d 678, 680, 93 P.2d 562, the court quotes this broad definition of property from 50 Corpus Juris, page 736, section 7, "Generally, the subjects of property comprise all valuable rights or interest protected by law. * * * In the broad sense of the term, 'property' includes * * * choses in action. * * * In modern legal systems, property includes practically all valuable rights. The term is indicative and descriptive of every possible interest which a person can have, extends to every species of valuable right or interest, and comprises a vast variety of rights. The right to be protected in a person's privileges belonging to him as an individual or secured to him as a member of the commonwealth is property, as is any valuable interest in or to any object of value that a person may lawfully acquire or hold." To this the Court adds: 'That definition certainly includes the right to compensation for personal injuries wrongfully inflicted by the wilful or negligent acts of another person.' See also Hunt v. Authier, 1946, 28 Cal.2d 288, at page 296, 169 P.2d 913, 171 A.L.R. 1379, where the above case is quoted for the same definition, and Ponsonby v. Sacramento Suburban Fruit Lands Co., 1930, 210 Cal. 229, 232, 291 P. 167, for a similarly broad definition. See also Mortimer v. Young, 1942, 53 Cal.App.2d 317, at page 321, 127 P.2d 950, 952, where it is said that, 'A cause of action for tort is, as held in the case last cited, [Everts v. Will S. Fawcett Co., 1937, 24 Cal.App.2d 213 74 P.2d 815] a 'thing in action.' It is therefore within the provision of section 691 of the Code of Civil Procedure for 'selling the things in action' of the judgment debtor on execution.' In the early case of McFadden v. Santa Ana etc., 1891, 87 Cal. 464,...