Kesler v. Pabst

• Court: California Supreme Court
• Writing for the Court: TRAYNOR; SHENK, Acting C. J., and EDMONDS, SCHAUER, and SPENCE, JJ., and PEEK; CARTER
• Citation: Kesler v. Pabst, 43 Cal.2d 254, 273 P.2d 257 (Cal. 1954)
• Decision Date: 13 July 1954
• Parties: KESLER et al. v. PABST. S. F. 18997

Page 257

273 P.2d 257

43 Cal.2d 254

KESLER et al. v. PABST.

S. F. 18997.

Supreme Court of California

July 13, 1954.

William A. Sullivan, San Mateo, for appellants.

Melvin M. Belli, San Francisco, Myron L. Garon, Arthur Wasserman, Los Angeles, Zeman, Hertzberg & Schekman, Samuel Schekman, Hirson & Horn, Theodore A. Horn, Pollock & Pollock, Edward I. Pollock, Los Angeles, Stanley Fleishman, Hollywood, Ashe and Pinney, Nichols, Richard, Allard & Williams, Oakland, Van H. Pinney, San Francisco, Jesse E. Nichols, Oakland, Hoberg & Finger, Shirley, Saroyan, Calvert & Peterson and John H. Peterson, San Francisco, amici curiae on behalf of appellants.

Partridge, O'Connell & Whitney and Wallace O'Connell, San Francisco, for respondent.

Parker, Stanbury, Reese & McGee, Los Angeles, Dana, Bledsoe & Smith, Bronson, Bronson & McKinnon, San Francisco, Trippet, Newcomer, Yoakum & Thomas, Belcher, Kearney & Fargo, C. W Cornell, E. D. Yeomans, O. O. Collins, Moss, Lyon & Dunn, Wayne Veatch and Henry Walker, Los Angeles, amici curiae on behalf of respondent.

TRAYNOR, Justice.

On the evening of July 11, 1950, plaintiffs, Mr. and Mrs. Kesler, were injured in a collision with defendant's automobile, when Mr. Kesler attempted to drive his car across Bayshore Highway at the Cypress Avenue intersection in San Mateo County. Plaintiffs brought this action to recover for their personal injuries and for property damage to the automobile. Defendant denied that he was negligent and pleaded contributory negligence of Mr. Kesler. The jury returned a verdict for defendant, and judgment was entered accordingly. A motion by Mrs. Kesler for judgment notwithstanding the verdict on the issue of liability in her favor was denied, and plaintiffs have appealed from the judgment and from the order denying Mrs. Kesler's motion.

Plaintiffs do not contend that the evidence is insufficient to support a finding that Mr. Kesler was contributively negligent. Mrs. Kesler contends, however, that the trial court erred in instructing the jury that contributory negligence of her husband would be imputed to her and bar her recovery. She bases this contention on a written instrument, executed after the accident, by which her husband relinquished to her his interest in her cause of action. She points out that according to the terms of the agreement, her cause of action became her separate property and that therefore her husband would not be unjustly enriched by her recovery, as he would had the cause of action remained community property.

In Flores v. Brown, 39 Cal.2d 622, 248 P.2d 922, 926, the question was presented whether the husband's death prevented the imputation of his contributory negligence to his wife in an action for her injuries and for the wrongful death of the minor child of the parties. It was held that the husband's negligence did not bar his wife's recovery. 'In the absence of an agreement to the contrary, it is settled that a cause of action for injuries to either the husband or the wife arising during the marriage and while they are living together is community property (citations), and the same rule is applicable to a cause of action for the wrongful death of a minor child, or for damages suffered by the parents because of injury to such a child. (Citations.) Accordingly, in all of these situations it is ordinarily necessary to impute the negligence of one spouse to the other to prevent the negligent spouse from profiting by his own wrong. (Citations.) When the marriage is dissolved, however, the interests in any of these causes of action become separate property, and it becomes possible to segregate the elements of damages that would, except for the community property system, be considered personal to each spouse. Under these circumstances the objective of preventing unjust enrichment may be accomplished by barring only the interest of the negligent spouse or his estate.' 39 Cal.2d at page 630-631, 248 P.2d at page 926. In the present case the pivotal question is whether this objective may also be achieved by an agreement between the spouses executed after the cause of action has accrued by which they purport to convert a community cause of action into the separate property of the injured spouse.

It is unnecessary to determine whether the general rule of nonassignability of cause of action for personal injuries renders ineffective a purported relinquishment of an interest in such a cause of action executed after the cause of action has arisen. See Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, 719-721, 103 P. 190. Even if it is assumed that such a relinquishment is effective between the spouses, its execution does not prevent the negligent husband from profiting by his own wrong. By his act of relinquishment Mr. Kesler sought to exercise control over his interest in the community cause of action and give up his rights in the recovery. The right to dispose of property, however, constitutes a major interest of the owner therein, and if by the exercise of such right the owner could avoid the effect of his contributory negligence and thus create an enforceable right in his donee that did not theretofore exist, he would in fact profit by his own wrong. Accordingly, the objective of preventing unjust enrichment cannot be accomplished by a voluntary relinquishment of the negligent husband's interest to his wife.

It is contended, however, that the logical consequence of the holding in Flores v. Brown, supra, is that a negligent husband is not unjustly enriched by his wife's recovery after he has relinquished his interest in her cause of action to her. In support of this contention it is urged that in that case the wife was allowed to recover for all of the damages suffered by her, although her husband's interest must have passed through his estate to her on his death. The argument concludes that since no unjust enrichment resulted in that case by permitting the husband's interest to pass to his wife through his estate, no unjust enrichment would result by allowing him to give his interest to her directly. This contention overlooks the peculiar character of the wife's cause of action for personal injuries. Although it was determined in McFadden v. Santa Ana etc. Co., 87 Cal. 464, 25 P. 681, 11 L.R.A. 252, that the wife's cause of action is community property, it remained the settled law, even before section 370 of the Code of Civil Procedure was amended in 1913 to allow the wife to sue alone, that the wife was a necessary party to the action. Moody v. Southern Pacific Co., 167 Cal. 786, 790-791, 141 P. 388. As was pointed out in the Moody case this rule was adopted at common law to prevent the cause of action for the wife's injuries from abating on her husband's death. See also, Fink v. Campbell, 6 Cir., 70 F. 664, 667; Fowler v. Frisbie, 3 Conn. 320, 324; Fuller v. Naugatuck Railroad Co., 21 Conn. 557, 573-574; Church v. Town of Westminster, 45 Vt. 380, 385; Horandt v. Central R. Co. of New Jersey, 78 N.J.L., 190, 73 A. 93, 96. 'Although at common law the cause of action for the wife's suffering was the separate property of the husband, it was settled that the wife was a necessary party to the suit; the reasoning being, as the authorities express it, that she was the 'meritorious cause of action,' and that, in case of his death pending suit, the cause of action would survive to her. * * * The proposition that, although the right of action is community property, yet the wife is a necessary party in this particular class of cases, is no more illogical than the rule at common law that the wife must join, though the right was the separate property of the husband. The reasons for the decisions under the common law are applicable to the case where the right is community property as fully and completely as to the case where it is the husband's separate property.' Moody v. Southern Pacific Co., supra, 167 Cal. 786, 790-791, 141 P. 388, 390. Thus, since on her husband's death, the wife's entire cause of action survives to her by operation of law, the husband cannot, either by exercising or failing to exercise his power of testamentary disposition over half of the community property, affect his wife's rights in her cause of action. Accordingly, he is not unjustly enriched by allowing his wife her full recovery. In the present case, on the other hand, Mrs. Kesler did not secure the entire interest in her cause of action by the occurrence of events beyond her husband's control; she secured it, if at all, only because he voluntarily relinquished it to her, and accordingly, the reason for the rule imputing his negligence to her has not ceased to exist.

Amici curiae contend that to the extent that the wife has been given the management and control of the damages recovered by her for her personal injuries by SECTION 171C OF THE CIVIL CODE¹, the husband's interest therein has become so attenuated that it should not be considered sufficient to justify imputing his negligence to her. In the light of this statutory change, it is contended that the evil of permitting the negligent defendant to escape liability is no longer outweighed by the benefits the negligent spouse might secure by his own wrong. See, Flores v. Brown, supra, 39 Cal.2d 622, 632, 248 P.2d 922. In this connection it is pointed out that the older cases in which the wife's negligence was imputed to her husband were decided primarily on an agency theory, and not on the theory that the wife's nonmanagerial interest in the community property was sufficient to justify imputing negligence to prevent her from profiting by her own wrong. See opinion on denial of hearing by the supreme court in Keena v. United Railroads of San Francisco, 57 Cal.App. 124, 132, 207 P. 35. Since it is now settled that the family relationship standing alone is not sufficient to convert family activities into joint enterprises, or to make one spouse the agent of the other, for purposes of imputing negligence,...