Shepardson v. McLellan

• Decision Date: 31 January 1963
• Citation: 27 Cal.Rptr. 884,59 Cal.2d 83,378 P.2d 108
• Court: California Supreme Court
• Parties: , 378 P.2d 108 Marvel I. SHEPARDSON, Individually, as Administratrix of the Estate of Norman H. Shepardson, Deceased, and as Guardian ad Litem of Evelyn Irene Shepardson, Norman Harold Shepardson, Linda Deane Shepardson, and Gregory Wayne Shepardson, Minors, Plaintiff and Appellant, v. Milford George McLELLAN and Jane Doe McLellan, Defendants and Respondents. L.A. 27057.

Page 884

27 Cal.Rptr. 884

59 Cal.2d 83, 378 P.2d 108

Marvel I. SHEPARDSON, Individually, as Administratrix of the Estate of Norman H. Shepardson, Deceased, and as Guardian ad Litem of Evelyn Irene Shepardson, Norman Harold Shepardson, Linda Deane Shepardson, and Gregory Wayne Shepardson, Minors, Plaintiff and Appellant, v. Milford George McLELLAN and Jane Doe McLellan, Defendants and Respondents.

L.A. 27057.

Supreme Court of California, In Bank.

Jan. 31, 1963.

C. Paul DuBois, Los Angeles, for plaintiffs and appellants.

King & Mussell and Stanley Mussell, Jr., San Bernardino, for defendants and respondents.

PETERS, Justice.

On September 20, 1959, on a main highway about 30 miles west of Blythe, California, a collision occurred between the pickup truck operated by Norman H. Shepardson, and the pickup truck then being operated by Milford George McLellan. Shepardson was killed in the collision. Mrs. Shepardson, for herself, as administratrix of the estate of her husband, and as guardian ad litem of the couple's four minor children then brought this action for the wrongful death of Shepardson against Milford George McLellan and his wife. The basic charge in this complaint was that McLellan was negligent in driving his car on the wrong side of the highway thus causing it to collide with the truck being driven by Shepardson, and that Shepardson was killed as a proximate result of this negligence. Proper elements of compensatory damage were pleaded. Later, plaintiff, in her various capacities, was permitted to add a new cause of action by way of supplemental or amended complaint in which she charged that McLellan at the time and place of the accident, 'did wilfully and with wanton and reckless disregard for the safety' of Shepardson, and 'after discovering the presence of' Shepardson, drive his truck on the wrong side of the road without regard to Shepardson's truck, 'without attempting in any way to avert injury' to Shepardson, and to cause his truck to collide with that of Shepardson, resulting in the latter's death. The prayers for damages in the original and supplemental complaints were identical. In other words, only compensatory damages were pleaded. Defendants' answer denied the material allegations of the complaint and the supplemental complaint, and affirmatively pleaded contributory negligence.

The pretrial order determined the issues to be (1) whether McLellan was negligent; (2) whether Shepardson was guilty of contributory negligence; (3) the nature, extent and proximate cause of Shepardson's injuries; (4) whether the negligence, if any, of McLellan should be imputed to his wife; () whether an agency relationship existed between the McLellans; and (6) whether McLellan was guilty of gross negligence, willful or wanton misconduct.

The case was tried before a jury, resulting in a plaintiff's verdict totaling $93,683. The plaintiff appeals.

The appeal comes to us on a settled statement. That statement recites that during the trial Mrs. McLellan moved for a nonsuit, and that such motion was granted. It is averred that the appeal is 'from the nonsuit and judgment entered thereon in favor' of Mrs. McLellan. The notice of appeal recites that the appeal is not only from the nonsuit alleged to have been entered on December 15, 1960, but also from that part of the judgment entered on December 19, 1960, and 'more particularly from those parts which were interlocutory orders and (i) which sustained the defendant's Demurrer to' the supplemental complaint, and from the 'withdrawal from the jury of determination of the issue of wilful misconduct and gross negligence, and being a minute order of December 19, 1960, and upon the judgment entered upon said minute orders.'

From the clerk's transcript and from the settled statement it appears that the facts are as follows: Plaintiff brought an action against defendants alleging two causes of action, one for negligence and one for willful miscorduct. On December 14, 1960, after plaintiff had rested, defendants moved for a nonsuit as to Mrs. McLellan, and also moved for a nonsuit on the cause of action charging willful misconduct. The clerk's transcript recites that on December 15, 1960, an order was entered granting the nonsuit as to Mrs. McLellan, and denying it as to the willful misconduct cause of action. Then, after both sides had rested, defendants moved for a directed verdict on the willful misconduct cause of action. Thereafter, and on December 19th, counsel for defendants, in chambers, requested leave to file a demurrer to the willful misconduct cause of action, or for summary judgment, or for judgment on the pleading in that cause of action. The demurrer was ordered filed and then sustained without leave to amend.

Thus, when the case was presented to the jury, by the instructions, and over the protests of plaintiff, the jury was limited to the negligence cause of action. A nonsuit had been granted Mrs. McLellan and a demurrer to the willful misconduct cause of action had been sustained without leave to amend. Plaintiff got a verdict on her negligence count, received partial satisfaction of $10,000, and without challenging the money portion of the judgment, seeks to appeal from the nonsuit, and from the trial court's order removing from the case the count charging willful misconduct.

The order granting the nonsuit to Mrs. McLellan was clearly appealable. In asmuch as that order terminated the action as to one party, and there being no indication in the order that it was to be followed by a formal written judgment, it was an appealable order (McColgan v. Jones, Hubbard, etc., Inc., 11 Cal.2d 243, 78 P.2d 1010).

On the merits of this appeal, the nonsuit was properly granted. Appellant urges liability on the part of Mrs. McLellan on the theory that the car was community property; that she was therefore a part owner, or, that in any event, her husband was her agent in driving the truck. The evidence, on this issue, summarized in the settled statement, shows that the McLellans were married in 1953; that thereafter Mr. McLellan was employed and that his wife was not; that the truck was purchased in April of 1959 with community funds and registered in the husband's name; that on September 20, 1959, Mr. McLellan was on strike against his then employer; that in search of temporary employment he and three other men loaded the truck and another car with equipment and started out for Blythe; that Mrs. McLellan did not accompany them; that the husband wanted employment to earn funds to support himself and his wife; that before leaving on the trip he told his wife that he was taking the truck. These facts do not support the contention that Mrs. McLellan was a part owner of the car so as to impose liability upon her, or that her husband was her agent in driving the car. This precise point was decided adversely to appellant's contentions in Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260. There it was held that, because the husband has control and management of the community property, no consent of the wife, express or implied, to his use of the community vehicle registered in his name, can add anything to his existing right to use the vehicle; that a wife cannot be held liable under section 402 (now § 17151) of the Vehicle Code for injuries to a third person resulting from the husband's negligence in the operation of the vehicle; and that such facts do not support a theory of agency. That case is controlling. (A different rule might apply if the car had been registered in the name of the wife. Dorsey v. Barba, 38 Cal.2d 350, 354, 240 P.2d 604.)

The purported appeal from the order sustaining the demurrer presents a different problem. Such an order is, of course, not separately appealable, but is reviewable on appeal from the final judgment (see cases collected 3 Cal.Jur.2d, Appeal and Error, § 48, p. 475). But so far as Mr. McLellan is concerned, no final judgment has been entered. No mention is made in the judgment entered on the jury verdict of the order sustaining the demurrer. Thus it was incomplete. Had it contained a judgment of dismissal in reference to the order sustaining the demurrer then it would have been reviewable on an appeal from that judgment. It is true that appellant does not appeal from the judgment entered on the jury verdict, but it is well settled that in a proper case a party may appeal from a part of a judgment that is severable (see cases collected 3...