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District Court of Appeal, Second District, Division 4, California.

Margaret B. COOKE, Plaintiff and Appellant, v. Ann TSIPOUROGLOU and Andreas Tsipouroglou, Defendants and Respondents.

Civ. 26239.

Decided: October 29, 1962

Oshman & Brownfield, Los Angeles, and Burton Marks, Beverly Hills, for plaintiff and appellant. Schell & Delamer and Fred B. Belanger, Los Angeles, for defendants and respondents.

This is an action for personal injuries arising out of an automobile accident.

The plaintiff wife was denied recovery by the trial court because the negligence of her driver-husband was imputed to her as a joint owner.

At the time of the accident plaintiff, Margaret B. Cooke, and Gladys Lamphere were passengers in an automobile being operated by plaintiff's husband, Jack Edward Cooke, in Los Angeles County. The automobile was owned by plaintiff and her husband. The Cooke automobile collided with an automobile operated by defendant Ann Tsipouroglou.

Both plaintiff and Gladys Lamphere brought separate actions alleging negligence on the part of defendants and further alleging that both defendants were owners of the automobile operated by defendant Ann Tsipouroglou. The actions were consolidated for trial. Gladys Lamphere recovered a judgment against defendants.

After a trial without a jury the court made findings of fact and conclusions of law pertinent on this appeal as follows:

‘* * * defendant Ann Tsipouroglou was negligent * * * and her said negligence was a proximate cause of said collision.

‘* * * Jack Edward Cooke was negligent * * * and his said negligence was a proximate cause of said collision.

‘Said 1958 Lincoln automobile, in which plaintiff was riding at the time of said accident, was owned by said plaintiff and by said Jack Edward Cooke jointly and not as community property.

‘Said negligence of said Jack Edward Cooke is imputable to said plaintiff Margaret B. Cooke.’

On appeal plaintiff makes two primary contentions. First it is claimed that the finding of joint ownership of the Cooke automobile is not supported by the evidence and is contrary to express presumptions in California law as to status of marital property.

Secondly, plaintiff argues that even assuming that the Cooke automobile was jointly owned, negligence should not be imputed to plaintiff in this case since the law contemplates imputation of negligence for the purpose of protecting innocent third persons only.

First dealing with the latter contention of plaintiff, it appears settled in California that in cases where an automobile is jointly owned by husband and wife the negligence of the driver-husband will be imputed to the passenger-wife to bar her recovery in a personal injury action against a negligent third party. (Vehicle Code § 17150; Mooren v. King, 182 Cal.App.2d 546, 552, 6 Cal.Rptr. 362; Rody v. Winn, 162 Cal.App.2d 35, 39–40, 327 P.2d 579.) The basis for this rule is Vehicle Code § 17150 which imposes vicarious liability upon an owner whose automobile is operated negligently by a permissive user. The statute is applied to bar actions by the owner against negligent third persons where the owner would be vicariously liable to another as a defendant for the permissive user's negligence. (Milgate v. Wraith, 19 Cal.2d 297, 299–300, 121 P.2d 10; also see Prosser on Torts. p. 300 and Restatement of Torts, § 485.)

However, the opposite result obtains where the automobile is community property. In such case the contributory negligence of the driver-husband is not imputed to the passenger-wife because the husband has management and control of community property and his use of such property is not dependent upon the wife's consent (Lawson v. Lester, 191 Cal.App.2d 34, 36, 12 Cal.Rptr. 368.)

The remaining question in this case is whether the Cooke automobile was in fact owned by plaintiff and her husband as community property or as property held as joint tenants or tenants in common.

Civil Code section 164 states the general presumption that all property acquired by husband and wife during marriage, other than property received by gift, bequest, devise or descent, is presumed to be community property. More specifically it is presumed that personalty acquired during coverture is community property. (Garten v. Garten, 140 Cal.App.2d 489, 495, 295 P.2d 23.) And all property acquired by purchase after marriage is presumed to be community property. (Wynn v. Wynn, 170 Cal.App.2d 484, 338 P.2d 930.)

As provided in Civil Code section 683, a joint tenancy in personalty can only be created by a writing. The intention to create the joint tenancy must be specifically set forth in the writing. (Berl v. Rosenberg, 169 Cal.App.2d 125, 133, 336 P.2d 975; Estate of Hoefflin, 176 Cal.App.2d 619, 628, 1 Cal.Rptr. 642.)

At the trial in the instant case plaintiff testified that the automobile was purchased out of community funds—the joint earnings of Mr. and Mrs. Cooke. Plaintiff's husband, Mr. Cooke, testified that he intended that the car be held as community property and that it was purchased out of his and plaintiff's joint earnings.

The evidence produced by defendants on the issue of how title to the automobile was held consisted of certified copies of registration certificate and certificate of ownership of the department of motor vehicles showing ownership of the car in the names of ‘Jack or May [Margaret] Cooke.’

Defendants assert that plaintiff and her husband acquired their ownership in the automobile by an instrument in writing which they conceive to consist of the prior owner's certificate of ownership, the application for transfer by new registered and legal owner (also admitted as evidence) and the other documents of the department of motor vehicles referred to above.

Under Civil Code section 164 the general presumption that property acquired after marriage is community property is rebutted where a married woman acquires personal property with another by an instrument in writing. In such case the married woman takes title as a tenant in common, unless a different intention is expressed in the instrument.

However, a registration certificate issued by the department of motor vehicles is not an ‘instrument in writing’ within the provision of Civil Code section 164. (Lawson v. Lester, supra, 191 Cal.App.2d 34, 37, 12 Cal.Rptr. 368; Rody v. Winn, supra, 162 Cal.App.2d 35, 39, 327 P.2d 579; Pacific Tel. & Tel. Co. v. Wellman, 98 Cal.App.2d 151, 155, 219 P.2d 506.) The court in Estate of Inman, 148 Cal.App.2d 952, 957, 307 P.2d 953, held the fact that a registration certificate was in the wife's name alone did not create the presumption that the automobile was her separate property.

Wilcox v. Berry, 32 Cal.2d 189, 192, 195 P.2d 414, which defendant cites may be readily distinguished from the instant case. In the Wilcox case a husband and wife seeking to establish community property ownership of their automobile invoked the presumption of Civil Code section 164 that where property is acquired by an instrument in writing describing the conveyees as husband and wife, such property is presumed community property. The court held that the presumption did not apply where the title was taken and held in ‘Jess G. Berry and/or Violet A. Berry.’ In the instant case Mr. and Mrs. Cooke do not assert the form of any instrument as evidence of how they held title.

Regardless of the form of instrument under which husband and wife take and hold title to property, it is not conclusive as to its status. The true status of such property may always be shown according to the intention, understanding or agreement of the parties. (Socol v. King, 36 Cal.2d 342, 345, 223 P.2d 627.)

Defendant also claims as evidence supporting the joint ownership contention, testimony of plaintiff on cross-examination by defendants' counsel as follows:

‘Q Now as to the ownership of your automobile, Mrs. Cooke, your husband and yourself owned that automobile in joint tenancy; isn't that correct?

‘A. That is true.

‘[Plaintiff's counsel] That calls for a conclusion of the witness, your Honor. I object to it.

‘THE COURT. Overruled. The answer may stand.

‘Q The automobile was registered in both of your names?

‘A Right.’

Absent some showing that Mrs. Cooke knew the difference between community and separate property, joint tenancy and tenancy in common, her statement that it was owned in joint tenancy is insufficient to rebut her testimony on direct that the automobile was owned by her husband and her and that it was purchased out of community funds. In order to destroy its character as community property under Civil Code section 164, it would be necessary that it be shown that she acquired an interest as her separate property by an instrument in writing. The various documents attendant to registering the car in the names of the husband or wife are insufficient for that purpose since they pertain solely to the matter of registration and transfer of registration. Nor do they satisfy the requirements of a writing expressly declaring property to be held in joint tenancy as required under Civil Code section 683.

Accordingly, the evidence remaining on the issue of the status of the property is the testimony of both plaintiff and her husband that the car was purchased with community funds and that it was intended to be held as community property. Other evidence supporting the community property status is the general presumption of Civil Code section 164 that property acquired by husband and wife after marriage (with exceptions not relevant here) is presumed to be community property.

A finding by the trial court of joint ownership in the face of the overwhelming evidence that the automobile was in fact held as community property is clearly error. Because the case turns on the status of the property, such error is prejudicial to plaintiff and requires reversal.

As noted, supra, the contributory negligence of the husband-driver is not imputed to the passenger-wife to bar her recovery from a negligent third party where the automobile which the husband and wife occupied was owned by them as community property. Use of community property by the husband is not dependent upon the wife's consent since the husband has management and control over community property. (Lawson v. Lester, supra, 191 Cal.App.2d 34, 36, 12 Cal.Rptr. 368.)

The judgment is reversed and remanded to the trial court for trial of the issue of damages.

BURKE, Presiding Justice.

JEFFERSON and FORD,* JJ., concur.

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