Hooper v. Romero
| Decision Date | 28 May 1968 |
| Citation | 262 Cal.App.2d 574,68 Cal.Rptr. 749 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ada HOOPER, Plaintiff and Appellant, v. John ROMERO, Jr. and Ranch Rock Company, a corporation, Defendants and Respondents. Civ. 8652. |
Young, Prenner & Hews and William F. Byrnes, Santa Ana, for plaintiff and appellant.
McCray & McCray and W. P. McCray, Santa Ana, for defendants and respondents.
This accident occurred on March 12, 1964, on Fairview Road immediately north of Newport Boulevard in Costa Mesa. The plaintiff Ada Hooper was riding in the front seat of an automobile being driven by her husband. They were proceeding north on Fairview Road, and the accident occurred at a point northerly of where Newport Boulevard intersects with Fairview Road. Newport Boulevard runs in a northeasterly-southwesterly direction and therefore intersects diagonally with Fairview Road, which runs in a straight northerly-southerly direction. The intersection is controlled by traffic signals. Vehicles traveling in a southwesterly direction on Newport Boulevard may make a right turn onto Fairview Road by utilizing a short 'feeder road' which cuts across the apex of the angle formed by the intersection.
Prior to the collision, plaintiff's vehicle had stopped for a red light at the intersection. After waiting for the light to change to green, plaintiff's vehicle continued to proceed north on Fairview and cleared the main intersection. The defendant, John Romero, Jr., was driving a 3-axle truck and trailer owned by his employer, Ranch Rock Company, in a southwesterly direction on Newport Boulevard, and made a right turn through the feeder road for the purpose of going north on Fairview Road. He noticed the 'yield' sign at the end of the feeder road, indicating that northbound vehicles on Fairview Road had the right-of-way. The defendant-driver rolled his combination truck-trailer past the yield sign in second gear and entered Fairview Road. He never saw the car in which plaintiff was riding before impact. In any event, the evidence is conflicting as to whether the defendant was negligent in negotiating the turn by failing to yield the right-of- way or in failing to see the car in which plaintiff was riding.
The collision caused damage to the left-front of defendant's truck and the right rear side of the plaintiff's automobile.
Plaintiff filed suit against the truck driver and his employer. Plaintiff's husband apparently did not join as a plaintiff inasmuch as he was not injured in the accident. The complaint contains the customary allegations with respect to negligence, proximate cause, general damages, medical expenses, and also contains the following express allegation: 'As a further proximate result of the said acts, omissions and conduct of the defendants, and each of them, plaintiff's automobile was damaged, * * *' In the prayer, plaintiff requested, Inter alia, recovery of damages to 'plaintiff's automobile.'
The defendant-driver and the defendant-employer answered and denied the allegations of the complaint. In addition, the defendants affirmatively alleged that plaintiff was contributorily negligent 'in that she did not use ordinary and reasonable care for her own safety' at the time of the accident. The defensive issues defined in the pretrial order were limited to a denial of liability and a charge of contributory negligence.
When both sides had presented their evidence and rested, counsel conferred with the court in chambers for the purpose of discussing the proposed jury instructions. Defendants submitted an instruction on the doctrine of 'imputed contributory negligence' on the basis that the allegations in the complaint regarding property damage represented an admission by plaintiff to the effect that the automobile driven by her husband, and in which she was riding, constituted her separate property, and that inasmuch as her contributory negligence had been raised as an affirmative defense in the answer, the negligence of her spouse was imputable to her as a matter of law. Plaintiff's counsel thereupon moved to dismiss the property damage claim and to amend the pretrial order by deleting any reference to the property damage claim. The motion was granted.
Plaintiff thereafter moved to amend the complaint and her pretrial statement for the purpose of eliminating any language which might be construed as alleging that plaintiff was the sole owner of the automobile or, in the alternative, to clarify the language to reflect its intended meaning that plaintiff only possessed a community property interest in the vehicle. Plaintiff further moved to reopen her case for the purpose of offering testimony as to the nature of the ownership of the automobile, the source of funds with which it was purchased, and the name in which it was registered at the time of the accident. The trial court denied plaintiff's motions and then instructed the jury in terms of contributory negligence (BAJI 103.1) and imputed contributory negligence (BAJI 145--A). The jury returned with a verdict in favor of defendants.
Plaintiff appeals from the judgment and raises the following issues: (1) The trial court erred in instructing the jury on the doctrines of contributory negligence and imputed contributory negligence; (2) the trial court abused its discretion in denying plaintiff's motion to amend the complaint and the pretrial order, and in denying her motion to reopen for the purpose of showing community ownership of the automobile.
Prior to its amendment in 1967, section 17150 of the Vehicle Code, enacted in 1959, provided as follows:
'Every owner of a motor vehicle is liable and responsible for * * * 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.'
However, where the Husband drives a Community property automobile, his negligence may not be imputed to his wife so as to impose liability upon her whether or not she consented to his operation of the automobile. (Shepardson v. McLellan, 59 Cal.2d 83, 87, 27 Cal.Rptr. 884, 378 P.2d 108.) The rule precluding liability against the wife for the negligent operation of a community motor vehicle by her husband which results in injuries to a third person is based on the rationale that the management and control of the community property is vested in the husband; therefore, the wife's consent would add nothing to his existing right to use the vehicle; thus, the husband's negligence is not imputable to the wife under sections 17150 and 17151 of the Vehicle Code. (Cox v. Kaufman, 77 Cal.App.2d 449, 452, 175 P.2d 260.)
Prior to the year 1957, a wife was barred from recovery for personal injuries in an action against a third person where her husband was guilty of contributory negligence. (Zaragosa v. Craven, 33 Cal.2d 315, 320--321, 202 P.2d 73, 6 A.L.R.2d 461.) The enactment of section 163.5 of the Civil Code gave a wife a right of recovery against a negligent third party even when her spouse was guilty of contributory negligence inasmuch as the damages awarded in a civil action for personal injuries were statutorily declared to constitute the separate property of the married person injured; hence, contributory negligence of the driver-husband does not bar the right of the passenger-wife to recover from the other driver for personal injuries sustained by the wife. (Wilkins v. Sawyer, 232 Cal.App.2d 458, 462, 42 Cal.Rptr. 817.) The enactment of section 163.5 of the Civil Code making a recovery for personal injuries by a married person his or her separate property was for the express purpose of eliminating as a defense the negligence of the injured person's spouse. (See 17 Stan.L.Rev. 55, Imputed Contributory Negligence.) Although section 163.5 of the Civil Code terminated the community status of the wife's cause of action for personal injuries, it did not preclude the imputation of her husband's negligence to her when she sought to recover damages against a third party where she gave him...
To continue reading
Request your trial
-
Sicor Ltd. v. Cetus Corp.
...are considered judicial admissions conclusively binding on the party who made them.") (emphasis added); Hooper v. Romero, 68 Cal.Rptr. 749, 753, 262 Cal.App.2d 574, 580 (1968) (same). In opposing summary judgment, Sicor explained that, "By saying litigation to judgment, the parties did not ......
-
Bedolla v. Logan & Frazer
...in allowing the amendment of any pleading (Fortenberry v. Weber (1971) 18 Cal.App.3d 213, 95 Cal.Rptr. 834; Hooper v. Romero (1968) 262 Cal.App.2d 574, 68 Cal.Rptr. 749; Vick v. Grasser (1959) 169 Cal.App.2d 692, 338 P.2d 223), as a matter of policy the ruling of the trial court in such mat......
-
Lantis v. Condon
...relationship itself did not furnish grounds for imputing the negligence of one spouse to the other. (See e. g., Hooper v. Romero (1968) 262 Cal.App.2d 574, 68 Cal.Rptr. 749; Workman v. City of San Diego (1968) 267 Cal.App.2d 36, 72 Cal.Rptr. Respondents contend that Civil Code section 5112 ......
-
Estate of Rogers
...by judgment after litigation. (Cf. Workman v. City of San Diego (1968) 267 Cal.App.2d 36, 41, 72 Cal.Rptr. 509; Hooper v. Romero (1968) 262 Cal.App.2d 574, 579, 68 Cal.Rptr. 749; Wilkins v. Sawyer (1965) 232 Cal.App.2d 458, 462, 42 Cal.Rptr. 817.) He concludes this argument as follows: '(T)......