Pacific Tel. & Tel. Co. v. Wellman

• Decision Date: 22 June 1950
• Citation: 98 Cal.App.2d 151,219 P.2d 506
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC TELEPHONE & TELEGRAPH CO. v. WELLMAN. Civ. 17319.

Page 506

219 P.2d 506

98 Cal.App.2d 151

PACIFIC TELEPHONE & TELEGRAPH CO. v. WELLMAN.

Civ. 17319.

District Court of Appeal, Second District, Division 2, California.

June 22, 1950.

Rehearing Denied July 12, 1950.

Hearing Denied Aug. 17, 1950.

Lawler, Felix & Hall, Leslie C. Tupper, Leland B. Conant, all of Los Angeles, for appellant and respondent Pacific Telephone & Telegraph Co.

Clarence B. Runkle, Los Angeles, for respondent and cross-appellant Irene E. Wellman.

WILSON, Justice.

Action to recover to cost of repairing plaintiff's truck which was damaged in a collision with an automobile driven by Ernest L. Wellman and owned by him and defendant Irene E. Wellman. Ernest Wellman lost his life as a result of the accident.

The action was commenced in the municipal court of Los Angeles and because the damages resulted from the same accident as that which is the subject of Spruce v. Wellman, Cal.App., 219 P.2d 472, was transferred to the superior court and the two cases were tried together.

It is alleged in the first cause of action of the complaint that defendant Irene E. Wellman and Ernest Lee Wellman were the owners of the automobile and that Ernest Wellman was operating it as the agent of Irene Wellman. Defendant denied the allegation of agency. No evidence was introduced in support of this cause of action and the same is deemed to have been abandoned.

The second cause alleges that Ernest Wellman was operating the vehicle with the consent and permission of Irene Wellman, imputing liability to her under SECTION 402(A) OF THE VEHICLE CODE¹. Defendant's answer admits the automobile was owned by her and Ernest Lee Wellman, denies it was driven by the latter with her consent and permission, and denies he had operated it in a negligent manner. The answer pleads unavoidable accident, also contributory negligence on the part of Connelly, the driver of plaintiff's truck.

Upon trial before a jury a verdict was rendered in favor of plaintiff for $607, the cost of repairs to the truck, and judgment was entered against the defendant for that amount. Her motion for a new trial was granted upon the ground of insufficiency of the evidence to justify the verdict and judgment. Plaintiff has appealed from the order granting a new trial. Defendant has cross-appealed from the judgment pursuant to Rule 3(a) of Rules on Appeal, 22 Cal.2d 2, which appeal, in view of the determination of plaintiff's appeal, will be dismissed.

The order granting a new trial for insufficiency of the evidence is justified for two reasons:

1. The burden of affirmatively proving permissive use is on plaintiff. Henrietta v. Evans, 10 Cal.2d 526, 528, 75 P.2d 1051; Barcus v. Campbell, 90 Cal.App.2d 768, 773, 204 P.2d 65. For the reasons presently to be stated the burden was not sustained. There are two factors or elements in section 402(a) both of which must be present and proved in order that a person other than the driver of a vehicle be held responsible for damages resulting from negligence in the operation of the vehicle: (1) It must have been owned at the time of the accident by such person, and (2) it must have been operated with the permission, express or implied, of such owner. Krum v. Malloy, 22 Cal.2d 132, 134, 137 P.2d 18. Each factor is as important as the other. The answer admits ownership in defendant and her husband but there is no evidence as to whether defendant's interest in the car was her separate property or community property of herself and her husband. The only evidence as to title is a photostatic copy of the registration certificate issued by the Department of Motor Vehicles showing registration in the names of Ernest Lee Wellman and Irene E. Wellman. There is nothing in the provisions of the Vehicle Code cited by plaintiff ² requiring the registration certificate to indicate the character of ownership, whether separate or community property, and the certificate in this action does not so show.

Had the automobile been community property defendant would not have been liable for the damages, since her husband had the management and control of all community property and she had no consent to give; her actually expressed consent, if given, would not have added to his rights which were already plenary and complete. Wilcox v. Berry, 32 Cal.2d 189, 191, 195 P.2d 414; Cox v. Kaufman, 77 Cal.App.2d 449, 451, 452, 175 P.2d 260. The presumption that property acquired by a married woman is her separate property applies only to that which is acquired 'by an instrument in writing.' Civ.Code, sec. 164; Estate of Walsh, 66 Cal.App.2d 704, 707, 152 P.2d 750; Fennell v. Drinkhouse, 131 Cal. 447, 451, 63 P. 734, 82 Am.St.Rep. 361. But where there is no evidence of a transfer by a writing the implication is that the property is community property. Estate of Walsh, supra, 66 Cal.App.2d at page 708, 152 P.2d 750.

The case of Caccamo v. Swanston, 94 Cal.App.2d 957, 212 P.2d 246, does not sustain plaintiff's contention as to defendant's liability. The court first stated, 94 Cal.App.2d at page 963, 212 P.2d 246, that if the car were community property the wife's consent to her husband's using it could not be required, she could not prevent his driving it, and therefore she would not be liable for his negligence, citing Cox v. Kaufman, supra. The evidence showed that the car had been purchased by the husband, the certificate of ownership was issued to him as registered owner and a finance company as legal owner. When the indebtedness to the finance company was paid the ownership certificate was delivered to the husband; he and his wife signed it and sent it to the Department of Motor Vehicles for transfer of ownership. The new certificate issued by the department showed the husband and wife as legal owners. As pointed out, 94 Cal.App.2d at page 964, 212 P.2d at page 250, the husband brought into being 'an instrument in writing' evidencing title in himself and his wife which satisfied the requirement of section 164 of the Civil Code and raised the presumption that the wife's interest was her separate property. No such proof appears in the instant case. There is no evidence that defendant's interest in the automobile was acquired by an instrument in writing, and there is therefore no presumption that her interest was her separate property. The certificate of registration is not 'an instrument in writing' by which a person acquires title.

2. The evidence concerning the accident was so conflicting that the discretion of the court in granting a new trial cannot be disturbed.

The collision occurred about 6:39 in the morning at the intersection of Eighth Street and Harvard Boulevard in Los Angeles. Eighth Street extends easterly and westerly and is crossed by Harvard at right angles. The weather was clear at the time. Connelly, the driver of plaintiff's truck, was traveling westerly on Eighth Street and Wellman southerly on Harvard Boulevard. Connelly testified that the signal on Eighth Street turned from red to green when he was 150 feet east of the intersection and that his speed at the time was 25 miles an hour. It was stipulated that the green signal remained for 36 seconds. In a conversation at the scene of the accident a few minutes after its occurrence Connelly told a police officer that the signal must have changed to red as he went through the intersection, and that he probably was at fault. Plaintiff argues that Connelly was injured and was not capable of making an accurate statement at the time, but the officer testified that while Connelly appeared nervous and excited he was walking around the scene of the wreck showing the officers the direction of travel and the place where the accident happened. Connelly's extra-judicial statement to the officer was evidence not limited to the purpose of impeachment but as an admission against interest. Card v. Boms, 210 Cal. 200, 204, 291 P. 190.

A motorman who was operating a street car westerly on Eighth Street testified that plaintiff's truck was from 40 to 60 feet east of Harvard when the signal changed from red to green; that it was at least five...