McCloud v. Roy Riegels Chemicals

• Decision Date: 29 October 1971
• Citation: 97 Cal.Rptr. 910,20 Cal.App.3d 928
• Court: California Court of Appeals Court of Appeals
• Parties: Maureen McCLOUD, Plaintiff and Appellant, v. ROY RIEGELS CHEMICALS and Richard Wayne Pugh, Defendants and Respondents. Civ. 12329.

Page 910

97 Cal.Rptr. 910

20 Cal.App.3d 928

Maureen McCLOUD, Plaintiff and Appellant, v. ROY RIEGELS CHEMICALS and Richard Wayne Pugh, Defendants and Respondents.

Civ. 12329.

Court of Appeal, Third District, California.

Oct. 29, 1971.

Rehearing Denied Nov. 17, 1971.

Hearing Denied Dec. 23, 1971.

Rawles, Nelson, Golden & Hinkle, Ukiah, for plaintiff and appellant.

Hardy, Erich & Brown, Sacramento, for defendants and respondents.

PIERCE, Associate Justice (Assigned).

The appeal is by plaintiff Maureen McCloud ^* from a judgment following a defense verdict in a personal injury action. There are two assignments of error: (1) that the trial court instructed the jury inadequately regarding the manner in which separate property may be transmuted to community property; and (2) that the court improperly denied plaintiff a new trial. The judgment will be affirmed.

The Facts

On the morning of June 5, 1967, plaintiff and her husband were eastbound in a small British made automobile on State Highway 16, a two-lane highway. Plaintiff's husband was driving and she was seated beside him. Rain had started shortly before and the pavement was wet.

A truck belonging to defendant Riegels, driven by defendant Pugh in the course of his employment, with another employee, Joe Labario, riding with him, had been traveling in the westbound lane of the same highway.

As Pugh approached the intersection of Highway 16 and the off-ramp leading into Highway 505, he intended to make a lefthand turn onto the latter. Highway 16 crosses Highway 505 on an overpass. The main bridge crossing the freeway (505) is located 700 feet west of the crest of the south turn off-ramp which descends on an arc and joins Highway 505 to the west at ground level. Approximately a quarter of a mile back from the entrance to the off-ramp Pugh had flashed his left-turn indicator, then started to make his left turn. During this maneuver he observed the plaintiff vehicle to the west. When first observed that car was on the overpass bridge which, as indicated, was 700 feet west. Pugh's testimony (by deposition) was that no portion of his truck had entered the eastbound lane. As he watched plaintiff's car he saw it moving into what appeared to be a locked wheel skid. Pugh immediately pulled the truck over to the right edge of the westbound lane and stopped. Plaintiff's car continued to skid. It collided with defendants' truck and came to rest partly under the rear portion. The testimony of Lavario, a defense witness, corroborated that of Pugh. Lavario stated, however, that at one point, while the truck was proceeding along the way towards making its intended turn, it had gotten three feet over the center line but had returned before the accident to the position on the right edge of the road.

Both plaintiff and her husband testified. Each related essentially the same account of the accident. Scott stated he was approximately 200 to 250 yards from the intersection when he first observed defendants' truck entering his lane making a left turn. Scott placed his speed at 55 miles per hour. He said he did not believe he could, traveling at that speed, stop his car in time to avoid a collision with the Riegels truck. He decided instead to leave the eastbound lane and cross over to the westbound lane, intending to go around the truck.

When Scott applied his brakes his car started 'fishtailing' and he lost control. The vehicle slid back and forth across the road. It struck the rear of defendants' now stationary truck and came to rest partially underneath it. Maureen suffered back injuries.

Maureen and Scott had been recently married. At the time of her marriage Maureen had owned the automobile, although for insurance purposes it had been registered in her mother's name. Maureen testified that after the marriage she and Scott had an understanding that the car belonged to both of them as their community property. We append her testimony in the margin. ¹ Scott's testimony did not cover that subject.

Defendants pleaded contributory negligence. A general verdict was returned.

Failure to Instruct re Transmutation of Separate to Community Property

It is conceded by plaintiff that Scott was guilty of negligence and that his negligence proximately contributed to the accident. That concession by plaintiff's counsel is understatement. Scott's manner of driving, by his own testimony, was so bizarre as to be almost unbelievable. We quote this testimony: 'Q I believe you also told us, Mr. McCloud, that when that truck started to turn you were some 200 to 250 yards back away from the truck. Is that true? A Approximately, yes sir. Q Still traveling 55 miles per hour? A Before I started turning? Q When you started your turn. A When I started, yes sir. Q We are talking about yards, are we? A Yes sir. * * * Q Is it your testimony you couldn't stop your vehicle going 55 miles per hour in a distance of 200 to 250 yards? A In my estimation, as I was proceeding down the ramp, no sir, I couldn't.'

We can judicially notice that the available stopping distance was more than twice that required. At this point Scott McCloud was more than two blocks away. Instead of yielding the right of way to the truck which he saw had already commenced its turn he continued on. Defendant Pugh therefore aborted his turn, swung to the extreme right of the highway and came to a stop. It is difficult for this court to understand on any fair appraisal of the testimony in what respect Pugh deviated from the role of a reasonable driver. The trial court may have been viewing the case more than somewhat conservatively in not resolving the issue of defendant's negligence in the latter's favor as a matter of law. We need not decide that question. Assuming that the issue of defendant Pugh's negligence was a fact question, the court correctly and effectively instructed the jury that it was to find in favor of defendants if it found: (1) Maureen to be the owner of the car; (2) that Scott was driving it with her permission; and (3) that Scott was contributorily negligent. ² At plaintiff's request the jury was further instructed that any contributory fault on the part of Scott would not preclude recovery by Maureen if it found the car to be the community property of the plaintiff and her husband. (See Hooper v. Romero (1968), 262 Cal.App.2d 574, 580--581, 68 Cal.Rptr. 749.) No instructions, however, were given to assist the jury to determine whether the vehicle was separate property or community property (see fn. 1), or how the transmutation of separate property into community could occur.

In Haseltine v. Haseltine (1962) 203 Cal.App.2d 48 at pages 58--59, 21 Cal.Rptr. 238 at page 245 (hg. den.), the court states: 'The law is clear that a husband and wife may by agreement transmute their separate property into community property. (Citations.) It may be done by oral agreement (citations), no particular formalities being necessary (citations). Where the parties agree that property shall be considered community property that is sufficient to so create it. (Citation.) 'All that is required to show an executed oral agreement of transmutation is proof of the parties' acts and conduct in dealing with their property.' (Citations.) Whether from such conduct and acts a transmutation has been effected is a question for the trier of fact. (Citation.)'

If there actually was substantial evidence in the record, under the rules stated, that the autmobile had been converted from the wife's separate property into community property--and the testimony of the wife (see fn. 1) is at least some evidence on the subject--then we may assume the trial court would have been obligated to instruct the jury so that it would not be left in the dark, unable to make a judgment on the question. ³ In the case before this court the trial court had offered to give enlightenment by an appropriate instruction on the issue of the separate-to-community property transmutation.

In a discussion between court and counsel on the subject of instructions, plaintiff's counsel stated that he felt it to be the responsibility of the defense to offer an instruction on transmutation. He (plaintiff's counsel) felt he would possibly be guilty of inviting error if he submitted such instruction. After this statement was made, the trial court specifically asked all counsel if instructions on transmutation should be given. No request was so made and the subject was dropped. ⁴

Of course, it was NOT the burden of counsel for defendants to offer instructions on the subject of transmutation of separate into community property. The discussion we have quoted in the margin actually involved a tactical decision by plaintiff's counsel to forego instruction on the subject. There were two possible reasons for his decision. First, there appears in the record material contradition by Maureen of her own testimony on the subject. We have quoted the testimony (fn. 1). But she had also given her deposition, portions of which are in the record.

In that deposition she had said: 'Q. And you were riding as a passenger in your own automobile? A. Yes. Q. Why weren't you driving that automobile? A. I usually let my husband drive, trips. * * * (After discourse regarding her attempts to cause her husband to drive slowly.) Q. Kind of cautious because the car belongs to you? A. Yes, it was My car. I'm kind of particular about it.' (Italics ours.) At that time there was no contention that the car had been changed by agreement into community property.

We suggest that at the time of the quoted colloquy (fn. 4) plaintiff's counsel was not as sure, as he argues now, that the record would have supported an instruction on transmutation. Secondly, it is to be remembered that every time in its instructions the court discussed a doctrine involving imputed negligence it would be bringing to each juror's mind Scott McCloud's 'contributory' negligence--such negligence being admittedly present. Opposing coun...