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District Court of Appeal, Third District, California.


Civ. 8328.

Decided: May 19, 1954

James I. Harkins and Albert E. Cronin, Jr., Stockton, for appellant. Smith & Zeller, Stockton, for respondent

Plaintiff and appellant brought this action for damages for personal injuries which she claimed to have sustained and for the wrongful death of her husband. Said injuries and death occurred while husband and wife were riding in an automobile driven by the husband. The car came into collision with a car operated by defendant and respondent at the intersection of a through highway, on which appellant and her husband were driving, with a highway on which respondent was driving. A full statement of the evidence is unnecessary to the determination of this appeal.

Appellant assigns error in the giving of an instruction concerning the effect of contributory negligence on the part of the husband of appellant and in certain rulings on evidence. There are other assignments of error which need not be discussed.

This case was tried in early June of 1952. As the jury was being impanelled counsel for the respondent called the attention of prospective jurors to the effect under the law of contributory negligence of appellant's husband, indicating that the law was such that if he had been guilty of negligence, proximately contributing to her injuries and his death, plaintiff could not recover. On argument counsel stressed considerably the facts which according to him proved that appellant's husband had been guilty of such contributory negligence. He stated to the jury that the court would instruct them as indicatd in his voir dire examinations and that following such instructions they ought to return a verdict for defendant, At the close of argument the court instructed the jury that defendant had pleaded the defense of contributory negligence on the part of plaintiff's husband and that if this defense was proven it constituted a total and complete defense to the action. Further, the court told the jury the evidence showed that at the time of the accident in question the automobile in which the plaintiff was riding was being driven by her husband and if they found the husband to have been guilty of negligence, proximately contributing in any degree to the injury of plaintiff and the death of her husband then she could not recover even though she herself took no part in the operation of the automobile and was not herself negligent. In October, 1952, following the trial, the Supreme Court handed down its decision in Flores v. Brown, 39 Cal.2d 622, 630, 631, 248 P.2d 922, 926, in which that court declared as follows:

‘In the absence of an agreement to the contrary, it is settled that a cause of action for injuries to either the husband or the wife arising during the marriage and while they are living together is community property * * *, and the same rule is applicable to a cause of action for the wrongful death of a minor child, or for damages suffered by the parents because of injury to such a child. * * * Accordingly, in all of these situations it is ordinarily necessary to impute the negligence of one spouse to the other to prevent the negligent spouse from profiting by his own wrong. * * * When the marriage is dissolved, however, the interests in any of these causes of action become separate property, and it becomes possible to segregate the elements of damages that would, except for the community property system, be considered personal to each spouse. Under these circumstances the objective of preventing unjust enrichment may be accomplished by barring only the interest of the negligent spouse or his estate.

‘Mr. Flores died in the same accident in which his wife was injured. To allow her to recover for her personal injuries will in no way enrich Mr. Flores or those who might take through him. Similarly, there will be no unjust enrichment if Mrs. Flores is allowed to recover for the wrongful death of her son. * * *

‘When the husband is dead, not only is the reason for the rule imputing his negligence to his wife gone, but to apply it defeats its own purpose. It is but a windfall to a defendant who negligently injures a wife or causes the death of a minor child that recovery may be barred because the wife's husband was also negligent. Although allowing the negligent defendant to escape liability has been considered a lesser evil than allowing the negligent spouse to profit from his own wrong, surely the former evil may not be balanced by the latter when the latter is no longer present.’

We do not know how often trial courts have in circumstances similar to those presented in this case instructed juries just as did the trial court herein, nor how often such instructions have been approved on appeal. Nevertheless, in theory these instructions have been wrong and in view of the declarations of the Supreme Court in the cited case the instructions given on this matter of contributory negligence of the husband were wrong in this case. That the error was prejudicial cannot be gainsaid in view of the emphasis placed throughout the trial upon the defense of the husband's contributory negligence. The judgment must be reversed for this error.

It appears from the record that there was present in the courtroom and in the possession of counsel for the plaintiff a report made by defendant to the California Highway Patrol pursuant to and required by the provisions of Section 484 of the Vehicle Code. The report was not introduced in evidence, although marked for identification. It has not been transmitted to this Court in connection with the appeal. Assuming that the document was a report so required by the statute, we think it proper to comment upon the situation. It is made the duty of the Department of Motor Vehicles and of the California Highway Patrol to investigate accidents resulting in personal injuries or death and to gather evidence for statistical purposes and for the purpose of prosecuting the person or persons guilty of any violation of law contributing to any such accident. Veh.Code, Sec. 139.38. By Section 484 of the Vehicle Code drivers involved in accidents are required to make or to cause to be made a written report of such accidents to the patrol, unless an accident occurs within a city, in which case the report is to be made to the police of such city. To aid in obtaining such reports, the State has declared that all required accident reports and supplemental reports ‘shall be without prejudice to the individual so reporting and shall be for the confidential use of the departments of Motor Vehicles and California Highway Patrol, except that the California Highway Patrol shall disclose the names and addresses of persons involved in, or witnesses to, an accident, the registration numbers and descriptions of vehicles involved, and the date, time and location of an accident, to any person who may have a proper interest therein, * * *.’ (Italics added.) Sec. 488, Veh.Code. By thus particularizing the disclosures which may be made, the legislature has, in effect, stated that there shall be no other exceptions to the confidential use of these reports. It is further provided that such a report shall not be used as evidence in any trial, civil or criminal, arising out of an accident. Sec. 488, Veh.Code. It is obvious that these protective provisions are in the nature of immunities granted to those upon whom the law lays its command. In exchange for the information contained in the reports the legislature plainly declares that these required reports shall be without prejudice to the individual so reporting and shall be used and kept in confidence. If, therefore, in this case the department or the patrol permitted the required report made by the defendant under the compulsion of the statute to be taken from their files and to be presented in the courtroom when the trial was in progress there was involved a violation of the rights of defendant and an abuse of the confidence which the law compelled the defendant to repose in the State and its agencies. The record here discloses how easily it may happen that a required report will prejudice the individual reporting if the report is permitted to be used and displayed in the courtroom where an action arising out of the accident reported on is being tried. The use of these required confidential reports in court is a direct violation of the State's promise that the reports shall be without prejudice to those who make them. These reports are confidential, should be kept confidential, and so guarded that no prejudicial use can be made of them.

The judgment appealed from is reversed.

VAN DYKE, Presiding Judge.

SCHOTTKY and PEEK, J., concur.

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