Zaragosa v. Craven ( 1949 )

SCHAUER, J.

Plaintiff appeals from an adverse judgment in this action brought by her to recover for personal injuries suffered in a collision between an automobile operated by defendant and one operated by plaintiff’s husband, in which plaintiff was riding. A prior action brought by the husband against the same defendant to recover for his own personal injuries suffered in the same accident resulted in a final judgment against the husband. The question for decision is whether the issues involved in this action brought by the wife are rendered res judicata by the prior judgment against her husband. We have concluded that the wife was in privity with her husband in the prior litigation and that inasmuch as the issues which she seeks to litigate are the same as those decided adversely to the husband in the earlier action, the determination there is binding on plaintiff here and the judgment in defendant’s favor, so holding, must be affirmed.

The collision between the automobile operated by plaintiff’s husband, in which plaintiff was riding, and the automobile driven by defendant occurred in May, 1946. On June 3, 1946, plaintiff’s husband, Joe Zaragosa, filed an action against defendant to recover for his own personal injuries alleged to have been caused by the collision. Approximately three weeks later plaintiff filed the instant action, in which she seeks damages against defendant for personal injuries allegedly received by her in the same collision. Defendant answered in each action, denying negligence on his part and alleging contributory negligence on the part of the husband, Joe Zaragosa.

On October 29 and 30, 1946, the action first filed was tried before a jury; that trial resulted in a verdict and judgment for defendant. No appeal was taken, and the judgment became final. Thereafter, on March 12, 1947, defendant, with leave of court, filed a supplemental answer to plaintiff’s complaint herein; in it he alleges that the judgment against the husband in the first action constitutes an estoppel and renders res judicata against plaintiff and in favor of defendant the issues of defendant’s negligence, the husband’s contributory negligence, and proximate cause, raised by the pleadings in each of the two actions. By stipulation, the plea of res judicata was tried as a special issue by the court sitting without a jury. Over plaintiff’s objection the record in the action brought by the husband was introduced into evidence. The court found in defendant’s favor, judgment was entered accordingly, and plaintiff appeals.

Section 1908 of the Code of Civil Procedure provides, so far as here material, that a judgment of a court or judge of this state having jurisdiction to pronounce it, is “in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding. ’ ’ This court has declared that “In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question ? Was there a final judgment on the merits ? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” (Bernhard v. Bank of America (1942), 19 Cal.2d 807, 813 [122 P.2d 892] ; see, also, Estate of Clark (1923), 190 Cal. 354, 360-361 [212P. 622].)

It is not disputed that the issues of defendant’s negligence and of the husband’s contributory negligence were directly involved in the first action and that one or both of such issues were by the jury determined in defendant’s favor. Plaintiff’s complaint in the instant case is, of course, predicated upon alleged negligence by defendant, and, further, plaintiff concedes that, unless her recovery would be her separate property (a suggestion of which proposition is hereinafter discussed), contributory negligence by her husband would under the community property law of this state bar her recovery of damages for her personal injuries. (See Basler v. Sacramento Gas & Elec. Co. (1910), 158 Cal. 514, 518 [111 P. 530, Ann. Cas. 1912A 642]; Solko v. Jones (1931), 117 Cal.App. 372, 374 [3 P.2d 1028], and cases there cited.) It is therefore apparent that the issues of negligence and contributory negligence, at least one of which, it is shown, was decided in defendant’s favor in the prior adjudication, are identical with those issues as presented in the instant action. (See Todhunter v. Smith (1934), 219 Cal. 690, 694-695 [28 P.2d 916], and authorities there cited; Sutphin v. Speik (1940), 15 Cal.2d 195, 201-202 [99 P.2d 652, 101 P.2d 497].) It is likewise not disputed that there was a final judgment on the merits in the prior adjudication.

Thus the remaining question is whether the wife—the plaintiff in the present action, against whom the plea of res judicata is asserted—was a party or in privity with a party to the prior action. It is our view that under well-established law the wife, although she was not named as a party in the action brought by her husband, was in privity with him and, hence, substantially in the legal position of a real party in interest in that litigation and- she is bound by the judgment rendered therein in defendant’s favor.

The term “privity” denotes mutual or successive relationship to the same rights or property. (California State A. Assn. v. Brunella (1936), 14 Cal.App.2d 464, 466 [58 P.2d 694]; 15 Cal.Jur. § 220, p. 191; 30 Am.Jur. 957-958; 50 C.J.S. 324-325.) Thus, in Cutting v. Bryan (1929), 206 Cal. 254, 258 [274 P. 326], it was held that where a husband, but not the wife, had been made a party defendant in an action concerning the title to certain land which the wife alleged was community property, the husband “was representing the community interest of himself and also of his wife in said property, and that as to such interest the . . . [wife] was in privity with her husband and was represented in said action by him as fully as though she had been expressly made a party thereto. [Citations.]” (See, also, Murdock v. Eddy (1940), 38 Cal.App.2d 551, 554 [101 P.2d 722]; Atchison T. & S. F. Ry. Co. v. Nelson (1915), 9 C.C.A., 220 P. 53 [135 C.C.A. 621].) And in 30 American Jurisprudence at page 957 (§ 225), it is declared that “Who are privies requires careful examination into the circumstances of each case as it arises. In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right.” The “legal right” here, to recover community property, depends in both cases on negligence of the defendant and lack of contributory negligence on the part of the husband in relation to the one accident.

Plaintiff concedes that (at least in the absence of an agreement to the contrary) the damages recovered for the personal injuries of either husband or wife, suffered during their marriage, are community property (see Civ. Code, § 162; Moody v. Southern Pacific Co. (1914), 167 Cal. 786, 789-791 [141 P. 388]; Giorgetti v. Wollaston (1927), 83 Cal.App. 358, 362 [257 P. 109]; Seiko v. Jones (1931), supra, 117 CaLApp. 372, 374). With particular reference to injuries to the wife, but equally applicable in its relevant principle to injuries sustained by the husband, it is said in Johnson v. Hendrick (1919), 45 Cal.App. 317, 321 [187 P. 782], that “Prior to the amendment of section 370 of the Code of Civil Procedure, in 1913 [Stats. 1913, p. 217], in an action for injuries to the wife the husband was a necessary party. In such an action, since the amendment, the wife may sue alone, but she is not required to sue in that manner. All persons having an interest in the subject of the action and in obtaining the relief demanded may be joined as parties, except when otherwise expressly provided. (Code Civ. Proc., sec. 378.) Money recovered for damages to the wife in this state has always been held to be community property, because it was not owned by the wife before marriage, nor acquired afterward by gift, devise, bequest, or descent. (Civ. Code, sec. 162; Moody v. Southern Pac. Co., 167 Cal. 786 [141 P. 388].)” Plaintiff urges, however, that Franklin v. Franklin (1945), 67 Cal.App.2d 717, 721-727 [155 P.2d 637], establishes that the cause of action for her personal injuries, as distinguished from any recovery therefor, belongs to her as her separate property, that her husband has no property interest therein, and that plaintiff should be given the opportunity to relitigate in a separate action the issues of negligence by defendant and contributory negligence by plaintiff’s husband. (Her husband, under the authorities above cited would also be a proper, but not a necessary, party.) Plaintiff’s contention in this respect must be considered in the light of the legislative and case-law history on the subject.

Prior to the 1913 amendment to section 370 of the Code of Civil Procedure, it became established as the law of this state that “A right of action for damages caused by personal injuries to the wife during marriage ... is community property” ; that both husband and wife were necessary party plaintiffs in an action to recover therefor (although the husband was permitted to sue alone for any consequential damages); and that contributory negligence by the husband defeated any right of recovery. (Moody v. Southern Pacific Co. (1914), supra, 167 Cal. 786, 789-791.) In 1913, the Legislature amended section 370 to read: “When a married woman is a party [to an action], her husband must be joined with her, except: 1. When the action concerns her separate property, including action for injury to her person, libel, slander, false imprisonment or malicious prosecution, or her right or claim to the homestead property, she may sue alone ...” (Italics added.) In 1921, section 370 was again amended, and since then has read: “.A married woman may . . . sue without her husband being joined as a party in all actions, including those for injury to her person, libel, slander, false imprisonment, or malicious prosecution, or for the recovery of her earnings, or concerning her right or claim to the homestead property. ’ ’

The cases decided subsequent to the .1913 amendment have held, seemingly without a dissenting voice, that the wife may sue alone to recover for her own personal injuries suffered during marriage, but apparently there has at no time been a discussion or consideration of whether by the italicized portion of the 1913 amendment as quoted hereinabove, the Legislature intended to make the cause of action (or the money recovered) for such injuries the separate property of the wife. The cases, other than certain language in the Franklin case (1945, supra, 67 Cal.App.2d 717, 721-727), have simply proceeded upon the declared theory that both the cause of action and any recovery of damages are community property, and contributory negligence by the husband still defeats recovery. (See Civ. Code, §§ 162, 163, 164, 687; Johnson v. Hendrick (1919), supra, 45 Cal.App. 317, 321; Sanderson v. Niemann (1941), 17 Cal.2d 563, 567, 569 [110 P.2d 1025]; 3 Cal.Jur. 10-Yr. Supp. §§ 50-53, pp. 540-544.)

It seems doubtful that by the 1913 amendment to section 370 of our procedural code, the Legislature intended to change the property rules declared by the Civil Code (§§ 162, 163, 164, 687) and by the courts. We are of the view, however, that any doubt which otherwise might exist should be considered obviated by the 1921 amendment to the same section (370), by which the questioned expressions were altered so that the section now carries no possible implication of an intention to define new or change otherwise existing property • rights as between husband and wife. Hence, it must be considered as the present law of this state that the cause of action for personal injuries suffered by either spouse during marriage, to whatever extent such cause of action may constitute property (see p. 725, Franklin v. Franklin, supra), as well as any recovery therefor, constitutes community property—at least in the absence of agreement otherwise between the spouses. Any contrary implications which may be derived from the language of the Franklin case are disapproved.

It is thus apparent that plaintiff was in privity with her husband, i. e., had a mutual relationship to the same right or property, in the prior litigation. The right, or cause of action, involved in such prior litigation was community in nature and the proceeds of any judgment that might have been recovered from defendant would have belonged to both husband and wife, as community property. Therefore, as in Cutting v. Bryan (1929), supra, 206 Cal. 254, 258, the husband was representing the community, to which if judgment had gone against defendant the latter would have owed payment (see McElroy v. McElroy (1948), 32 Cal.2d 828, 831 [198 P.2d 683] [2] [5]), and consequently the wife was also represented as to her interest in the community and is bound by the judgment.

The fact that the cause of action for injuries to the wife is different from the cause of action for injuries to the husband is here immaterial. “By virtue of the doctrine of res judicata the final determination of a court of competent jurisdiction necessarily affirming the existence of any fact is conclusive evidence of the existence of that fact when it is again in issue in subsequent litigation between the same parties in the same or any other court. The facts decided in the first suit cannot be disputed or relitigated although the later suit is upon a different cause of action. (Estate of Clark, 190 Cal. 354, at p. 360 [212 P. 622]; Horton v. Goodenough, 184 Cal. 451, at 461 [194 P. 34]; Price v. Sixth Dist. Agricultural Assn., 201 Cal. 502 [258 P. 387]; Martin v. Holm, 197 Cal. 733 [242 P. 718]; 15 Cal.Jur. 134, 136; 2 Freeman on Judgments, 5th ed., 1425.) The doctrine of res judicata has a double aspect. A former judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.” (Todhunter v. Smith (1934), supra, 219 Cal. 690, 694-695.) We are satisfied that upon the record here the legal right to recover the community judgment in both cases depends on an asserted obligation (arising, if at all, from negligence of the defendant and the husband’s lack of contributory negligence, both in proximate relation to the accident in question) which, if it did not exist in the one case, cannot exist in the other.

Plaintiff suggests that perhaps she and her husband had agreed that damages recovered for her injuries should be her separate property, and perhaps the jury verdict in defendant’s favor in the husband’s action was based on his contributory negligence, and urges that in such case any contributory negligence of the husband would not be imputed to plaintiff so as to bar a recovery by her if defendant be found negligent. (See Perkins v. Sunset Tel. & Tel. Co. (1909), 155 Cal. 712, 719-720 [103 P. 190].) Assuming in plaintiff’s favor, without here passing upon, the correctness of the suggested proposition of law, at the trial plaintiff introduced no evidence of a property agreement between the spouses and may not raise the point for the first time on appeal. Certainly such a suggestion, in the absence of evidence to support it, does not affirmatively establish the prejudicial error required for reversal. (See Cal. Const., art. VI, §4%.)

For the reasons stated the judgment is affirmed.

Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.