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


Civ. 12453

Decided: March 15, 1940

Jack R. Kates and Kenneth C. Miller, both of Los Angeles, for appellant. Mills, Hunter, Dunn & Liljestrom, of Los Angeles, for respondents.

Plaintiff appeals from a judgment barring her action for damages resulting from personal injuries alleged to have been caused by defendant's negligence in the operation of an automobile. Prior to the present action, plaintiff and her husband, Job Sanderson, filed suit against defendant Niemann in the small claims division of the municipal court of Los Angeles, in which they sought to recover $49 “for auto damage and Dr. bill due to personal injury”. Following that trial, judgment was entered in their favor for $12.58 which was paid. At the trial of the present action, plaintiff testified that, in the former action, she had recited from the witness stand facts concerning the nature of her injuries. The judge, who heard the case, also testified that she gave testimony relative to the character of injuries she had received. The small claims court had jurisdiction of the case.

Subsequently, plaintiff alone instituted this action against said Niemann and one Frost to recover damages suffered by her in the identical motor car collision out of which arose her said first action. Said Frost was alleged to have been the driver of defendant's car at the time of the accident, but he was never served with process and as to him the action was dismissed.

After plaintiff and the judge of the inferior court had given their said testimony, objection was made to any further evidence upon the ground that plaintiff's cause of action was barred by force of the rule which inhibits the splitting of causes. The court sustained said objection and thereupon ordered a dismissal of the action. The question before us on this appeal is: Does a valid judgment in an action brought by a wife and her husband for expenses incurred for physician's hire made necessary by injuries suffered by the wife in a motor traffic accident, bar an action subsequently filed by the wife alone, based upon the same accident and injuries? Since the exact question does not appear ever to have been presented to the appellate courts of this state, we are required to consider the matter in the light of our juridical and legislative policy to the end of deriving a just and enlightened decision. Plaintiff bases her contention upon two propositions, namely, (1) since the wife is in privity with the husband in the ownership of a claim based upon injuries to her body, she should be permitted to join him in an action for any consequential damage to her without peril to her separate action; and (2) since the first action was by the husband for damages consequential to her said injuries, the judgment entered therein will be conclusive upon the issue of negligence.

(1) The problem presented by the first proposition is solved by a consideration of the code provisions relative to the ownership of property by the husband and wife and of the legislative changes of such provisions as well as of the code sections with reference to parties to civil actions. An action for injuries to the wife is community property. Civ.Code, secs. 162, 164. Prior to 1913 the husband had control of all community property. Hence, prior to amendment, he was a necessary party in the wife's action for injuries to her person. But in that year the law was changed so that a married woman might sue, without her husband's being joined as a party, for injury to her person, Code Civ.Proc. sec. 370, although he still has the management and control of the community property. Civ.Code, sec. 172a. At the same time section 427 of the Code of Civil Procedure was amended so that in any action brought by the husband and wife to recover damages for injury to the wife, all consequential damages sustained by the husband might be alleged and recovered without separately stating such cause of action; also, that causes of action for injuries to person and injuries to property growing out of the same tort may be joined in the same complaint without separately stating such cause of action. As a result of said amendments to the laws affecting the relation of husband and wife, a wife is no longer obliged to wait for the consent of her husband to enforce the payment of losses suffered on account of her personal injuries. On entering court for such purpose, she comes as a separate entity, to be dealt with as a distinct agency by the court in the trial and in the judgment entered. Although she is permitted by said section 370 to sue alone for such damages, yet there is no express inhibition against joining her husband with her as a party plaintiff. Johnson v. Hendrick, 45 Cal.App. 317, 187 P. 782. Therefore, when she once, in a court that has jurisdiction, plights her faith to a claim for damages due to her own personal injuries, her die is cast. Having, in such forum, stated that the basis of her demand is the negligence of the defendant, then all of her claims founded upon such negligence must then and there be fully exposed and the merits tried to the end that judgment may be final as between herself and the defendant. If her husband first seek compensation for losses he has suffered by reason of her injuries instead of joining with her, he must, if two distinct actions are contemplated, alone enter the appropriate court for redress and in view of the enlightened provision of said section 427 of the Code of Civil Procedure, even such separate action would not be encouraged, it being the policy of the law to minimize the number of lawsuits in effectuating justice. But, if the wife joins her husband in an action for such consequential damages, the author of her alleged injuries has a right to expect that any judgment which they obtain in such joint action will result in an adjudication of all claims of either based upon defendant's negligence.

Plaintiff's said “Small Claims” action was for damages resulting from her in juries; so, also, is her present action. There, she sought special damages arising from the hire of a physician because of her injuries; here she seeks general damages for her suffering sustained from the same injuries. But both were based upon defendant's negligence. Provision having been made for her to unite any of her own claims in one suit, and likewise any claims of her husband, she apparently spurns the generosity of the law for a tactical advantage. Such a procedure is contrary to the spirit of our code and is not supported by our decisions.

The principle applicable here is exemplified in a measure in the case of Kidd v. Hillman, 14 Cal.App.2d 507, 58 P.2d 662, 663. The plaintiff there first sued for injuries to her person and her clothing. She recovered and the judgment was paid She then sued for damages to her automobile. She was denied recovery because “she cannot now pursue appellant in another action for damage to her property arising out of the same accident”.

From the reasoning of that court, it appears to be a sound principle that when married woman seeks legal redress of her grievance, she is subject to the same rules that govern her spinster sister. Therefore, it may be declared as a wholesome rule that a judgment, obtained by a married woman against her tort-feasor on any account, is adjudicata of any other claim she may have had arising out of the same negligence committed by the same feasor. Cases cited by plaintiff are not applicable because they refer to the right of the husband alone to sue for consequential damages. Martin v. Southern Pacific Co., 130 Cal. 285, 62 P. 515; Tell v. Gibson, 66 Cal. 247, 5 P. 223; 1 Cal.Jur. 346; Lamb v. Harbaugh, 105 Cal. 680, 39 P. 56.

The judgment is affirmed.

MOORE, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.

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