Fredrickson & Watson Const. Co. v. Boyd

• Decision Date: 02 May 1940
• Docket Number: 3221.
• Citation: 102 P.2d 627,60 Nev. 117
• Parties: FREDRICKSON & WATSON CONST. CO. et al. v. BOYD et al.
• Court: Nevada Supreme Court

102 P.2d 627

60 Nev. 117

FREDRICKSON & WATSON CONST. CO. et al. v. BOYD et al.

No. 3221.

Supreme Court of Nevada

May 2, 1940

Rehearing Denied June 27, 1940.

Appeal from District Court, Second District, Washoe County; B. F Curler, Judge.

Action by Elizabeth E. Boyd and H. E. Boyd, her husband, against the Fredrickson & Watson Construction Company and others for damages resulting from injuries to wife while guest in automobile. From a judgment and order in favor of plaintiffs defendants appeal.

Affirmed.

E. F Lunsford and Morley Griswold, both of Reno, for appellants.

Sherman & Sherman, of Los Angeles, Cal., and Clel Georgetta and Clyde D. Souter, both of Reno, for respondents.

ORR Justice.

Respondents are husband and wife, and as such brought an action in the court below asking damages for injuries alleged to have been suffered by the wife due to the negligence of the defendants. The case was tried by a jury and a verdict rendered in favor of the respondents in the sum of $16,000. From this judgment appellants have appealed and have assigned certain errors upon which they base their claim for a reversal of the judgment.

Assignment No. 1 has three subdivisions, namely: (a) Sustaining of the general demurrer to the affirmative answer and defense, which alleges contributory negligence of the plaintiff husband, who is alleged to have been driving the automobile; (b) to the giving of Instruction No. 9, which reads as follows: "The Court instructs the jury that if you find from the evidence that the defendants in this case were negligent and that such negligence was the proximate cause of the injuries, if any, received by Elizabeth E. Boyd, then your verdict should be for the plaintiffs even if you should also believe from the evidence that H. E. Boyd was guilty of contributory negligence."

(c) To the refusal of the court to give defendant's offered Instruction No. 5, which reads as follows: "I instruct you that in an action for injuries by the wife received in a collision where the automobile in which the wife was riding was being driven by her husband and where the husband is guilty of negligence in the operation of his automobile, proximately contributing to the accident and the wife's injuries, such negligence is imputable to the wife and constitutes a defense just as if the injuries received by the wife resulted from her own negligence."

The issue raised under the assignments above stated is: may the contributory negligence of the husband be imputed to the wife in the State of Nevada? At the outset we may state that appellants present the affirmative of this question, fortified by an unanimity of authority in their favor from each of the community property states which have passed upon it, namely: Texas, Louisiana, Washington, California, Idaho and Arizona. These comprise six of the eight community property states. If this court can accept the reasoning employed by the courts of the states mentioned, in arriving at their conclusion that the proceeds flowing from a cause of action for a personal injury to the wife is community property, then this judgment should be reversed. We have given much attention to this subject, realizing its importance and, further, realizing that the decisions of the very eminent courts of the several states mentioned merit careful consideration. Ordinarily, such an array of reputable authority would almost at once persuade us to follow the same course. But careful analysis has lead us to the conviction that in the beginning the course was charted wrong, and "there is no sufficient ground of justice or social policy to refuse the innocent wife any and all recovery because of the husband's contributory negligence". 24 Cal.Law Review 741. The courts of the community property states have classed such a cause of action and the proceeds thereof as community property because of the statutes of those several states defining separate and community property, which statutes are very much the same as the statutes of this state.

Section 3355, N.C.L., provides, in part, as follows: "All property of the wife, owned by her before marriage, and that acquired by her afterwards by gift, bequest, devise or descent, with the rents, issues, and profits thereof, is her separate property."

Section 3356, N.C.L., provides: "All other property acquired, after marriage, by either husband or wife, or both, except as provided in sections 14 and 15 of this act, is community property."

Sections 14 and 15 of the Act have no bearing on the points under consideration.

Hence the holding of the states mentioned, supra, that a cause of action for personal injuries to the wife, or the proceeds of the recovery from such a cause of action, not being property owned by the wife before marriage or acquired by her afterwards by gift, bequest, devise or descent, or the rents, issues or profits thereof, must necessarily be community property.

Appellants contend that the provisions of the statute are plain and direct, and that to say that the cause of action and proceeds thereof, acquired after marriage, is separate property is to carve out of the Community Property Law additional property, which, if it is to be done, is for the Legislature and not for the courts.

We are in complete agreement that changes in the law are for the Legislature. No matter how great the injustice resulting from the application of the hard and fast rule depriving the innocent wife of compensation for injuries because of the contributory negligence of the husband may appeal to us, we cannot evade such an application unless convinced it is not a proper one under the law.

In construing Section 3356, N.C.L., much depends upon the breadth of meaning given the word "acquired" as used therein.

We are aware that a sufficiently broad definition can be given it so that it will envelop every known mode and manner of property acquisition, and thus be made to squarely fit the pattern of interpretation found in the cases dealing with like statutes in the community property states hereinbefore referred to. We are persuaded that the word should be read and interpreted in the light of the uses and purposes of community property and the establishment of community rights; and in so reading it we doubt very much whether it logically can be said that the Legislature used the word in the sense that it was to be all-comprehensive. It seems more logical to conclude that the word was used in the more restricted sense of embracing wages, salaries, earnings or other property acquired through the toil or talent or other productive faculty of either spouse; that they did not have in mind compensation for an injury to the person which arises from the violation of the right of personal security, which said right the wife brings to the marriage.

If compensation to a married woman for personal injury is not made community property by Section 3356, N.C.L., then its character as to being separate or community must be determined by the generally accepted rules of property classification. In fixing the classification of the proceeds flowing from compensation for a personal injury to the wife in this case, it seems unnecessary to discuss the refinements involved in the question of whether a chose in action for a tort is property, for the reason that the judgment and proceeds flowing therefrom are conceded to be property, and the judgment takes its character from the right violated, namely, the right of personal security. We quote with approval the following, taken from McKay on Community Property, Second Edition, p. 296, par. 398:

"The character of the judgment as separate or common takes its character from the right violated; and that a cause of action for a personal injury is based on the violation of a separate right, namely the right to personal security, than which no right is more intensely personal and separate. This right is so intensely personal and separate that it can not be held by another as trustee nor in common with another. This right belonged to the wife at common law, and so did the cause of action for its violation. There has never been any mistake about this in the common-law authorities, though the later cases make it more clear than did the older ones.

"The general rule adopted by the courts is in conflict with the fundamental principles of compensation. The common-law rule is well established that the plaintiff's compensation must be limited to the loss he has sustained by the defendant's act. In case of the wife's personal injury, the husband at common law was permitted to recover for the loss of the wife's services and the expense of her care and cure, in his own right; but in his own right he could not recover more; he could not recover for her personal injury.

"The husband as head of the community sustains the same relation to the wife as at common law, so far as the present question is concerned--he is entitled to her services, and is liable for the expense of her care and cure, and for the violation of these rights he should recover. But neither at common law or by the law of community does he hold the wife's right to personal security and should not be permitted to recover for the violation of this right. It does not belong to him nor to the community. The wife's physical pain and suffering are not his loss nor the loss of the community."

Our statute, Section 3356, N.C.L., and other related statutes were taken from California. So far as we have been able to discover, appellant has not contended that we should place the same construction on this statute as have the courts of California, by reason of said statute having been taken from said state. This could not be so, because the rule in California at the time of the enactment of our...