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District Court of Appeal, Third District, California.

WILCOX v. BERRY et al.

Civ. 7378.

Decided: October 01, 1947

Van Dyke & Harris, of Sacramento, for appellant. Sumner Mering, of Sacramento, for respondent.

The present controversy arises out of a collision between an automobile operated by plaintiff and a car owned by defendants Jess G. Berry and Violet A. Berry, which was being driven by the former. Jess G. Berry, although named as a defendant, was not served with process, and the trial proceeded against Violet A. Berry alone, resulting in a judgment in favor of plaintiff. This appeal is from that judgment.

The first ground for reversal urged by appellant is that the trial court erred in admitting as evidence a statement made by Jess G. Berry, to officers at the scene of the accident to the effect that the reason he could not stop was because his brakes did not work properly.

The transcript shows that in response to a radio call two police officers were directed to the scene of the accident. Although the exact time of their arrival is not clearly indicated, it would appear from all of the facts and circumstances therein disclosed that their arrival was within a relatively short time after the collision occurred, and that Berry's statement was made to them at that time. The contention of the appellant that his statement was made too long after the occurrence of the accident is without merit. A comprehensive enunication of the rule regarding lapse of time is found in Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 160 P.2d 21, 24, wherein the Supreme Court stated:

‘* * * declarations which are voluntary and spontaneous and made so near the time of the principle act as to preclude the idea of deliberate design, though not precisely concurrent in point of time therewith, are regarded as contemporaneous and admissible.’

With respect to admission of statements made within the res gestae the rule has been stated thus:

‘To render them admissible it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. Wigmore on Evidence, 2d Ed., sec. 1750.’ Showalter v. Western Pacific R. R. Co., 16 Cal.2d 460, 106 P.2d 895, 900.

Under the authority of these cases it no longer is the law in this state that the statements must be made contemporaneously with the transactions to be admitted in evidence. In the Lane case the statements of the bus driver were made some twenty minutes after the accident occurred, and, as in the present case, were not spontaneous in the strict sense of the word but uttered in response to questions asked by a third disinterested party.

The second ground for reversal urged by the appellant is that the evidence is insufficient to support the finding of the trial court that the automobile being driven by Jess G. Berry was not the community property of himself and the defendant Violet A. Berry, who at that time were husband and wife. It is well established that if there is a conflict in the evidence upon this point, as there was in this case, which evidence the trial judge fully set forth and discussed in his memorandum opinion, an appellate court is bound by the finding of the trial court based upon such evidence. Estate of Ades, 81 Cal.App.2d 334, 184 P.2d 1.

An examination of the record reveals evidence tending to show that Mr. and Mrs. Berry considered this automobile, as well as other property, to have been owned by them as tenants in common. This is indicated solely by her testimony, when called as an adverse witness under section 2055 of the Code of Civil Procedure. Such testimony discloses their separate employment for several years prior to and during their marriage; that the automobile was purchased with the earnings of each; that it was agreed between them that each was to have an equal voice and control in its use, and that in the event of a sale the consent of the other would have to be obtained. Such an agreement as to equal voice and control is inconsistent with a community property status. It was also shown by her testimony that title to the automobile was obtained by an instrument in writing—a contract of sale. This writing was not produced in court or introduced in evidence but it was stipulated between counsel that it was in the form of ‘Jess G. Berry and/or Violet A. Berry.’ Likewise her testimony shows that all other instruments relating to the ownership of the car such as insurance policies and the certificate of registration were drafted with the use of ‘and/or.’ Although no other evidence was introduced or further stipulation made as to whether or not the instrument named the parties as husband and wife, nevertheless it having been shown by competent testimony that the wife obtained title by an instrument in writing, the presumption arose under Civil Code section 164 that she took an interest therein as her separate property, which presumption would obtain in the absence of a showing that the instrument did in fact name the parties as husband and wife.

Aided by this presumption and the testimony of the wife with respect to the management and control of the automobile, the trial court was justified in concluding that is was not the community property of Jess G. Berry and Violet A. Berry.

By virtue of such determination and the further finding of the trial court, likewise upon sufficient evidence, that Jess G. Berry was operating the automobile ‘with the permission of Violet A. Berry and within the meaning of section 402 of the Vehicle Code of the State of California,’ it follows that appellant's final contention falls squarely within the rule stated in Krum v. Malloy, 22 Cal.2d 132, 137 P.2d 18, rather than the case of Cox v. Kaufman, 77 Cal.App.2d 449, 175 P.2d 260.

The judgment is affirmed.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J. concur.

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