Traglio v. Harris, 9028.

• Decision Date: 17 July 1939
• Docket Number: No. 9028.,9028.
• Parties: TRAGLIO et al. v. HARRIS.
• Court: U.S. Court of Appeals — Ninth Circuit

127 ALR 803, 104 F.2d 439 (1939)

TRAGLIO et al. v. HARRIS.

No. 9028.

Circuit Court of Appeals, Ninth Circuit.

June 9, 1939.

Rehearing Denied July 17, 1939.

Maguire, Shields & Morrison, Hugh L. Biggs, and Donald K. Grant, all of Portland, Or., for appellants.

Morton & Ekwall and C. W. Kirk, all of Portland, Or., for appellee.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

Appellants present for review a judgment rendered against them in an action brought by appellee to recover for personal injuries sustained in an automobile accident as the result of appellants' alleged negligence.

Appellee, her husband and her son were at all times material herein, residents and citizens of California, and were riding in an automobile, which, under California law, was community property of the husband and appellee, and which was being driven by the son in Oregon. A collision occurred in Oregon with a truck being operated by, or under the direction of appellants, as a result of which both the husband and wife sustained injuries. The husband and wife filed separate actions in the court below against appellants to recover for the injuries sustained. Appellants answered, alleging that at the time of the accident, the son was driving the automobile "as agent for" appellee, was contributorily negligent, and that such contributory negligence was the proximate cause of appellee's injuries.

The two actions were consolidated for trial. It is conceded that "substantial evidence was introduced by each of the parties tending to prove due care on his or her own part and negligence on the part of the operator of the other vehicle in the respects charged in their respective pleadings". The trial court instructed the jury that if the son was guilty of contributory negligence, then the husband could not recover, on the theory that the son's negligence was to be imputed to the husband, but instructed the jury that they were not to consider the negligence of the son in appellee's case. Appellants excepted to the latter instruction. Appellants requested, and the trial court refused, an instruction that if the son was negligent "and if such negligence was the proximate cause of the accident and injuries sustained by appellee, your verdict should be for" appellants.

With respect to this last mentioned instruction, appellants now contend that such instruction was that if the son's negligence was the "sole" cause of the injury, then appellants were not liable. If that was what was intended by such instruction, it certainly was vaguely stated. No such point was raised in the trial court, and consequently will not be considered here.

Appellants also requested, and the court refused, certain instructions hereinafter considered.

The jury returned a verdict against the husband, in his action, and for the wife in her action.

The theory of appellee is that under the Oregon law, the negligence of a child cannot be imputed to the mother unless the mother exercised control over the child. Marshall v. Olson, 102 Or. 502, 202 P. 736; Macdonald v. O'Reilly, 45 Or. 589, 78 P. 753. Appellants' theory is that under the California law, the negligence of the child is imputed to the father, and since any recovery of the wife is for the benefit of the community, recovery must be denied the wife, because to grant recovery would permit the husband to benefit by his own wrong. McFadden v. Santa Ana, etc., Ry. Co., 87 Cal. 464, 467, 25 P. 681, 11 L.R.A. 252; Solko v. Jones, 117 Cal.App. 372, 3 P.2d 1028. The question argued relates to whether the Oregon law is applicable — appellee contending that it is — or whether the California law is applicable. Appellants contend that the California law is applicable, on the theory, that the ownership of the cause of action is determinative here, and that such determination must be found in the application of the law in California. It is further asserted that application of California law to the question of such ownership discloses that such a cause of action is owned by the community, thus bringing into operation the rule of the California cases cited. Of course, appellants' entire theory is based on the assumption that the jury found as a fact that the son was guilty of contributory negligence.

It may be doubted if the question argued is in fact raised. The conclusion that the jury found as a fact that the son was guilty of contributory negligence, does not necessarily follow. It may have returned a verdict against the husband on the ground that he failed to show any injury. The record is wholly silent as to whether the husband was or was not injured. The instructions given over objection of appellants, and those requested by appellants, but refused by the court, all raise the question as to whether negligence of the son should be "imputed" to appellee so as to make her guilty of "contributory" negligence, but as will be seen, such a question is determined by the Oregon law.

However, since the parties have assumed that the son was negligent, and since under the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the record might be supplemented and corrected, we assume for what is hereinafter said, that the son was negligent.

The place of the alleged wrong, in the instant case, was Oregon. Restate. of the Law, Conflict of Laws, 454, § 377. Whether a cause of action accrued to appellee is to be determined by the law of the place of the wrong. The Scotia, 81 U.S. 170, 184, 14 Wall. 170, 184, 20 L.Ed. 822. As said in Cuba R. R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274, 38 L.R.A.,N.S., 40: "* * * With very rare exceptions the liabilities of parties to each other are fixed by the law of the territorial jurisdiction within which the wrong is done and the parties are at the time of doing it. * * * That, and that alone, is the foundation of their rights". See, also, Slater v. Mexican National R. R. Co., 194 U.S. 120, 127, 24 S.Ct. 581, 48 L.Ed. 900; Young v. Masci, 289 U.S. 253, 258, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170; 2 Beale, The Conflict of Laws, 1288, § 378.1, 1289, § 378.2, where it is said that "the law of the place of wrong determines whether or not there is a cause of action for the wrong". Such is the law in Oregon. Dryden v. Petton-Armstrong Co., 53 Or. 418, 422, 101 P. 190.

Application of that rule discloses the existence of a cause of action in the wife, unless liability does not exist in Oregon because of an alleged rule that recovery will be denied where it will permit one to benefit by his own wrong. We may assume, without so deciding, that in Oregon it is or will be held that recovery will be denied the wife, in such a case, if the husband is guilty of contributory negligence and will obtain the benefit of the recovery. The question as to whether he will so benefit is, we think, to be determined by the law of Oregon, since such a question must be decided in determining whether a cause of action arose.

Appellants contend that we must look to the law of California to determine who owns the cause of action. Exactly in point, as to both propositions last mentioned, is Texas & Pacific Ry. Co. v. Humble, 181 U.S. 57, 21 S.Ct. 526, 45 L.Ed. 747, where a married woman in Arkansas was travelling there on a journey to her husband domiciled in Louisiana, and was injured in Arkansas. The court said, 181 U.S. at page 60, 21 S.Ct. at page 528, 45 L.Ed. 747:

"But it is said that under the laws of Louisiana compensation for personal injuries to a married woman belongs to the husband; that he alone can sue therefor. * * *

"However, whether the objection be that under the laws of Louisiana she could not recover in her own name at all, or could not, except her husband was a co-plaintiff, because the damages claimed were community property, we agree with the circuit court of appeals that plaintiff's rights in suing in Arkansas for an injury sustained there did not differ from those of any married woman domiciled in that State; that the legislature of Arkansas had determined by whom a suit might be brought for personal injuries sustained by a married woman; had enlarged the rights of married women in respect of damages recoverable by them on account of personal injuries sustained within the state; and that these laws necessarily enured to the benefit of every married woman who subsequently sued in the courts of the state for personal injuries there sustained, and must be held to have been intended to have, and to have, a uniform operation throughout the state."

The force of these statements, when so deliberately made on the precise point, may not be destroyed by calling it "dicta". It is inconceivable that recovery would be permitted where the point urged was sound, even though the "dicta" considered it unsound.

We think this principle is sound. A cause of action is the unlawful violation of a right which the facts show". Baltimore S. S. Co. v. Phillips, 274 U.S. 316, 321, 47 S.Ct. 600, 602, 71 L.Ed. 1069; Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 77 L.Ed. 1148. When appellee entered Oregon she was extended by that state the right to proceed along the highway without injury by negligent conduct of appellants, regardless of whether or not her husband was also negligent — a right not extended to her by California. She sues for a violation of the Oregon right. It would be a strange situation to determine the existence and extent of the right by reference to the law of a state which did not recognize such a right. It seems apparent that the existence and extent of such right should be determined by the law of the state which extends it. We think a contrary rule, as applicable here, is unsound. The theory that the cause of action is "property" has been criticized (1 Cal.L.Rev. 296, 297; 2 Cal.L.Rev. 161, 162) as has been the rule denying recovery by the wife where the husband is guilty of contributory negligence. 24 Cal.L.Rev. 739.

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