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District Court of Appeal, First District, Division 1, California.

KESLER et al. v. PABST.

Civ. 15560.

Decided: December 03, 1953

William A. Sullivan, San Mateo, for appellants. Partridge, O'Connell & Whitney, San Francisco, for respondents.

In his petition for a rehearing defendant calls our attention to the fact that plaintiff Bertha Kesler's complaint as amended asked for special damages for her medical, surgical and hospital expenses (a wife may use for her consequential damages, Sanderson v. Niemann, 17 Cal.2d 563, 110 P.2d 1025; Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708) and that to withhold imputation to plaintiff Bertha of plaintiff Walter's negligence as regards a recovery by her for these special damages would be relieving him of his liability as her husband therefor, and would, in effect, be permitting him to profit by his own wrong. Nothing in our opinion is intended to effect such result. As to the wife's cause of action for consequential damages, the husband's negligence is imputable.

The last paragraph of the opinion is stricken and in lieu thereof there is inserted the following: ‘That portion of the judgment in favor of defendant as against plaintiff Bertha for her general damages is reversed; the balance of the judgment is affirmed. Each party shall bear his own costs of appeal.’

The petition for rehearing is denied.


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