ZARAGOSA v. CRAVEN (1948)

Judgment was rendered against the plaintiff in a suit for personal injuries and for special damages growing out of an automobile collision. She was riding in the car with her husband who was operating it at the time of the accident. A prior judgment was rendered against the husband, in a suit brought by him only, for his personal injuries sustained in the same accident. The wife was not an actual party plaintiff in the first action. In this suit the answer pleaded the first judgment as res judicata and estoppel to this action, setting up the fact that plaintiff was riding with her husband in their car at the time of the accident; that both actions are based on the same casualty, and that the chose in action was, and any judgment which might be recovered would be, their community property. The question of estoppel was first tried by agreement. The judgment roll in the husband's case was admitted in evidence, over the objection of plaintiff that it was incompetent. Upon oral and documentary evidence adduced, the court found against plaintiff on all issues, and rendered judgment against her on the ground that the first judgment was res judicata, and that plaintiff is estopped from maintaining this action on that account. From that judgment this appeal was perfected.

The appellant contends that the prior judgment against the husband is not res judicata or an estoppel from maintaining this suit by the wife for her own personal injuries sustained as a result of the accident because she was not a party to the first suit and not in privity with him under Sections 1908 and 1910 of the Code of Civil Procedure; that the husband's contributory negligence, which was an issue in the first case, could not be imputed to the wife, and that the community interests in a judgment for her personal injuries might have been abrogated by an ‘antenuptial agreement’.

The amendment to the answer in this case alleges that Joe Zaragosa, the husband of plaintiff, previously filed suit against this defendant for damages for personal injuries resulting from the same automobile accident on account of which Mrs. Zaragosa now seeks in this separate action to recover damages for her personal injuries; that the plaintiffs in said actions were, at all times mentioned, husband and wife, and that ‘the causes of action of each of said plaintiffs arising out of said automobile collision were and are the community property of both of them;’ that Mrs. Zaragosa knew of her husband's said action and ‘was present in court at the trial thereof’; that at the time of the accident Mrs. Zaragosa was riding in their machine, which was then being operated by her husband; that the issues of defendant's negligence and plaintiff's contributory negligence were both determined by a jury adversely to the plaintiff in that action, Mr. Zaragosa, and a judgment was accordingly rendered against him, to the effect that there was no valid cause of action; that no appeal was taken from that judgment and it became and is final; that said judgment is res judicata of the essential issues of this case, and estops and bars the wife from recovering damages against that defendant growing out of that same casualty. The former judgment determined there was no liability on the part of the defendant.

The foregoing facts were all determined by the court favorable to the defendant. A judgment was rendered accordingly.

We are of the opinion the court properly found that the judgment which was previously rendered in the suit brought by the husband for personal injuries sustained by the same automobile casualty is res judicata of the issues of this case, and that Jennie Zaragosa is thereby estopped from maintaining this action for her personal injuries and for special damages incurred in that accident. In this case the court found that the respective parties plaintiff were husband and wife; that both cases were based on the same automobile casualty; that this plaintiff was in privity with her husband in the first action; that the judgment was rendered in the first suit on the grounds that Mr. Zaragosa was guilty of contributory negligence and the defendant was not guilty of negligence; and that the property interests involved ‘were and are the community property of both’ of the spouses.

It is true that this plaintiff was not named as a party plaintiff in the first action, but she had a community interest in that chose in action and in any judgment which her husband might have recovered. She must, therefore, be deemed to have been in privity with him, and consequently bound by the issues determined in that action. In 15 California Jurisprudence, page 191, section 220, it is said:

‘It is an elementary principle, recognized by the code, that a judgment or order is operative not only upon parties, but to the same extent upon their privies. The term ‘privity’ denotes mutual succession or relationship to the same rights of property.'

The plaintiff's community interests vested in the former chose in action and in any judgment which might have been recovered by her husband in that prior suit. In accordance with Section 1908(2) of the Code of Civil Procedure, the Supreme Court said in Bernhard v. Bank of America, 19 Cal.2d 807, at page 813, 122 P.2d 892, at page 895:

‘In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one present in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (Citing authorities.)’

Applying the preceding test to the present case, we must answer the first two questions in the affirmative. In reply to the last question we must assume that this plaintiff was in privity with her husband in that suit on account of her community interest in the property involved. In Atchison, T. & S. F. Ry. Co. v. Nelson, 220 F. 53, 57, 135 C.C.A. 621, the federal court said regarding the parties to a suit for personal injuries received by the wife as the result of tort, in a suit by the husband for her injuries and consequential damages to himself on that account, that ‘the judgment recovered in either case was community property, and by reason of that fact the wife was in privity with the husband and an actual party to each suit. (Citing California authorities.)’ There is reason for that conclusion, which appears in applying the principle to this action. The husband brought suit for his personal injuries resulting from the automobile casualty, and refrained from making his wife a party plaintiff. He lost the suit because it was determined the defendant was not guilty of negligence, and upon the contrary that he was guilty of contributory negligence. The wife then brought the present suit for her personal injuries and for special damages for medical care, growing out of the same casualty. If she could recover damages he would profit to the extent of his community interest in the judgment, notwithstanding the fact that the merits of the casualty were determined against him in a former suit. In the former suit it was determined there was no valid cause of action. That is the reason given by many authorities for applying the doctrine of res judicata under circumstances similar to this case.

It is true that the California statute authorizes a married woman to maintain a suit for damages for injury to her person. C.C.P., sec. 370. But that does not mean that a suit may not be barred by estoppel under the circumstances of this case. Both statutes should be read together in determining the merits of the action.

Every action must be prosecuted in the name of the real party in interest. C.C.P., sec. 367. A married woman may sue for damages for injury to her person, without joining her husband. C.C.P., sec. 370. The plaintiff may unite several causes of action growing out of the same transaction, resulting in ‘injuries to person’, provided that a suit brought by the husband and wife, to recover damages to the husband for injury to his wife, in the nature of consequential damages resulting from his loss of services and companionship, may be recovered ‘without separately stating such cause of action.’ C.C.P., sec. 427.

In this case the appellant suggests that she was not in privity with her husband or bound by the adverse judgment against him in the former action for his personal damages growing out of the same automobile casualty; that even though she would be an interested party in the first suit on account of her community interest in any judgment he might have recovered, she had no similar community interest in the husband's right of action or chose in action, as distinguished from her property interest in whatever judgment he might have secured. Franklin v. Franklin, 67 Cal.App.2d 717, 722, 155 P.2d 637. But the California authorities, with the exception of the last one cited, appear to be unanimous in holding that a chose in action or right to sue for damages for personal injuries sustained by either a husband or wife during the marriage is a community property interest, regardless of which spouse prosecutes the action. Solko v. Jones, 117 Cal.App. 372, 374, 3 P.2d 1028; Giorgetti v. Wollaston, 83 Cal.App. 358, 362, 257 P. 109; Cutting v. Bryan, 206 Cal. 254, 258, 274 P. 326; Moody v. Southern Pacific Co., 167 Cal. 786, 790, 141 P. 388; Justis v. Atchison, Topeka & Santa Fe Ry. Co., 12 Cal.App. 639, 642, 108 P. 328; 41 C.J.S., Husband and Wife, § 473b. In the text last cited, which is supported by several cited California cases and authorities from other jurisdictions, including W. W. Clyde & Co. v. Dyess, 10 Cir., 126 F.2d 719, it is said:

‘* * * As a general rule, unless some special provision therefor is made by statute, damages received in compensation for injuries to either the husband or the wife, or to both are held to fall into the community as property acquired during the marriage. The chose in action or the right to sue for damages is community property in like manner, and the damages after recovery fall into the community regardless of which party has prosecuted the action.’ (Italics added.)

Section 378 of the Code of Civil Procedure provides that ‘All persons may be joined in one action as plaintiffs who have an interest in the subject of the action.’ And Section 382 of that code provides in part that ‘* * * those who are united in interest must be joined as plaintiffs or defendants.’

While the wife who brought this action was not actually named as a party in the former suit of her husband for personal injuries received, since she owned a community interest in that chose in action she must be deemed to have been in privity with him and to have been a constructive party thereto so as to bind her by the judgment which was rendered against him, for the reason that her husband represented her interest in the former suit as completely as though she had been actually named therein as a party. Cutting v. Bryan, supra; C.C.P., sec. 1910. The section last cited provides that:

‘The parties are deemed to be the same when those between whom the evidence is offered were on opposite sides in the former case, and a judgment or other determination could in that case have been made between them alone, though other parties were joined with both or either.’

If the wife was in privity with her husband in that suit and therefore deemed to have been a constructive party thereto, as the Cutting case determines that she was, the evidence of the former judgment, which was properly received in this case against her, indicates that she and the defendants must be considered to have been on ‘opposite sides in the former case,’ and it follows that the judgment ‘could * * * have been made between them.’ That construction of the facts of this case brings it within the provisions of Section 1910, supra.

It is suggested that the wife was not in privity with her husband in ownership of said property rights in the chose in action, because the term ‘privity’ is confined to property rights acquired by spouses ‘by inheritance, succession, or purchase’ from other parties subsequent to the marriage. 50 C.J.S. Judgments, § 788.

It is true that the definition of ‘privity’ includes the foregoing statement. But the same section of 50 Corpus Juris Secundum, last cited, includes a much broader definition of that term. It reads:

‘With respect to the application of the doctrine of res judicata to those in privity with parties to a suit, there is no generally prevailing definition of ‘privity’ which can be automatically applied to all cases, and the determination of who are privies requires careful examination into the circumstances of each case as it arises. According to many decisions, privity means a mutual or successive relationship to the same rights of property, or such an identification in interest of one person with another as to represent the same legal rights; and the term ‘privity’ when applied to a judgment or decree refers to one whose interest has been legally represented at the trial.'

The foregoing text is supported by a multitude of authorities from most of the states of our Union, including the Cutting case, supra, by our Supreme Court. The definition of the term ‘privies' uniformly includes ‘persons who are parties to, or have an interest in any action or thing, or any relation to another; those who are partakers of, or have an interest in, any action or thing; * * * persons connected together, or having a mutual interest in the same action or thing, by some relation other than that of actual contract between them.’ 50 C.J. 406, sec. 1; Century Dict. and Enc. In 3 Bouv. Law Dict., Rawle's Third Rev., page 2723, it is said: ‘Privy. One who is a partaker or has any part or interest in any action, matter, or thing.’

We conclude the term ‘privity’ applies to a wife who acquires after marriage and owns a property interest with her husband in a chose in action, under the circumstances of this case.

In the case of Cutting v. Bryan, supra, Minetta, the wife of Henry Cutting, brought suit in her name alone to determine her community interest in mining claims. On motion of one of the defendants to dismiss the action, his affidavit showed that Henry Cutting was a party to a suit then pending in the Federal court involving his interest in the community property; that the property was then in the hands of a receiver by virtue of an order of the Federal court. The action in the state court was thereupon dismissed. On appeal that judgment was affirmed. The appellant contended that since the wife was not an actual party to the Federal suit, she was not bound by its decision. In the Cutting case the Supreme Court held that, in spite of the fact that the wife was not an actual party to the Federal suit, since the community interests of the spouses were involved therein, she was in privity with her husband in that action, and that she was represented therein by her husband ‘as fully as though she had been expressly made a party thereto.’ The court said [206 Cal. 254, 258, 274 P. 327, 328]:

‘The fact that the plaintiff was not expressly made a party to the action which had theretofore been commenced and was being prosecuted in the federal court does not, in our opinion, militate against the application of the foregoing principle, for the reasons set forth in certain of the cases above cited, and for the additional reason that the husband of the plaintiff was the principal party defendant in said action, and as such was representing the community interest of himself and also of his wife in said property, and that as to such interest the plaintiff herein was in privity with her husband, and was represented in said action by him as fully as though she had been expressly made a party thereto. (Citing authorities.)’ (Italics added.)

The Franklin case, supra, in which a hearing was denied, appears to be in conflict with the former decisions of the Supreme Court to the effect that a chose in action, as well as a judgment recovered for personal injuries sustained by either a husband or wife during marriage, is community property. Both the California and Southern California Law Reviews recognize that conflict. 18 S.C.R. 278; 33 C.L.R. 627. The first or these cited reviews of that case, after stating that ‘by recognizing that the judgment would be community property, it is material and necessary to establish the cause of action as community property’, concludes by saying that ‘Until such time as the judgment recovered upon such action is deemed to be separate property, it must be inevitable that the chose in action on which the judgment is based must be classified community property.’ The latter cited review of that case, after stating that the Franklin case is in conflict with previous California authorities, mentioning the Solko case, and others, says that ‘If the cause of action is property, it accrues to the community estate at its inception.’ After stating that such judgment is community property, the author says, ‘This is the present law of California.’ In commenting on the Franklin case, the review suggests that it ‘is not so much that the result is wrong but that the previous rules of law are questionable.’ But our Supreme Court has frequently held that the right of action for personal injuries to spouses is not separate personal property belonging to the husband, and it has specifically refused to overrule the principle declaring that it is community property inuring to the benefit of both spouses. In the case of Moody v. Southern Pacific Co., supra, after citing numerous authorities and reiterating the rule that the right of action for tort resulting in personal injuries is community property, the court said, at page 791 of 167 Cal., at page 390 of 141 P.:

‘We are now asked to overrule these decisions. [Reciting the appellant's reasons therefor.] * * * The reasoning is forceful, but the rule has been followed so long and so often that it should be considered settled. * * * The remedy for any hardships or anomalies resulting from this long-settled rule rests with the Legislature.’

In Waters v. Waters, 75 Cal.App.2d 265, 170 P.2d 494, it was held that an action for a fee, which was recovered in a suit for that purpose by the defendant who was an attorney, was community property and properly distributed to Mr. and Mrs. Waters in a divorce suit between them, in spite of the fact that the action for attorney's fees was merely pending and not yet determined when the interlocutory decree of divorce was awarded in which it was divided between the spouses as community property. That case was decided in 1946, a year and a half after the Franklin decision was rendered.

The theory upon which it has so frequently been held that a chose in action acquired by spouses after their marriage is community property, just as the judgment rendered thereon is also community property, is that the judgment is founded on, or stems from, the same cause of action, and the character of the property rights is the same with respect to both. In considering the community rights of spouses there are but two types of property involved, namely, separate and community property. Assuming that the judgment when rendered is community property, as the Franklin case concedes, if the chose in action is not the same character then it must necessarily be separate property. It is inconsistent to hold that the mere right to bring the suit is separate property while the judgment obtained therein is community property. We are unable to perceive what method of reasoning or principle of law could result in transforming separate property into community property under such circumstances. The test is, was the chose in action property, and was it acquired during marriage. If so, then it must be community property, just as the judgment which is the result of this litigation is community property. The authorities are uniform in holding that a chose in action is property. The right to maintain the action for personal injuries to both the husband and the wife accrued during their marriage. Sections 162 and 163 of the Civil Code provide that all property owned by either spouse before marriage, and that which is afterward acquired by ‘gift, bequest, devise, or descent, with the rents, issues, and profits thereof’ is separate property. Section 164 of that code provides that ‘All other property acquired after marriage by either husband or wife, or both, * * * is community property.’ Until the legislature, or the Supreme Court, definitely draws a distinction as to the character of property between a chose in action acquired after marriage and a judgment rendered thereon, we must assume that both are community property.

The appellant, however, asserts that she is not estopped from maintaining this suit because there might have been an antenuptial agreement between the spouses to the effect that the property interests in the chose in action and in the former judgment would not become community property. But, in this case, there is no evidence of any such antenuptial agreement. The burden was on the plaintiff to prove that agreement, if any such existed, as a matter of defense to the alleged estoppel. She failed to prove that agreement. The former judgment is therefore controlling on that issue.

The appellant further suggests that the issue of imputing the negligence of the husband to the wife, who was riding in the car at the time of the accident, was not decided in that case. The California authorities appear to be uniform to the effect that the negligence of a husband which contributes to the injury of his wife will be imputed to the latter and bar her from recovering judgment for her injuries on that account. Giorgetti v. Wollaston, supra; Martin v. Costa, 140 Cal.App. 494, 498, 35 P.2d 362; Solko v. Jones, supra; Dicken v. Souther, 59 Cal.App.2d 203, 210, 138 P.2d 408; 9 Blashfield's Cyc. of Auto. Law and Practice, Perm.Ed., § 5862. In the Giorgetti case it is said in that regard [83 Cal.App. 358, 362, 257 P. 111]:

‘A right of action for personal injuries to the wife is community property (citing authorities); and though as provided by statute she may sue alone (sec. 370, Code Civ.Proc.), yet if the negligence of her husband proximately contributed to her injuries, the right of either or both to recover is barred (citing authorities).’

In the prior case of Mr. Zaragosa, the issues of his contributory negligence and defendant's freedom from negligence were both tried and determined against him. If the defendant was not guilty of negligence, that would be a complete defense to the present action. If the jury determined that the husband could not recover because he was guilty of contributory negligence, under the foregoing authorities that negligence would be imputed to his wife and she would thereby be barred from recovery for her injuries in this suit. In either event she would be precluded in this action from recovering judgment for her injuries.

The trial court did not err in granting defendant's motion to amend his answer by setting up the former judgment as res judicata of the issues involved and a bar in this action. Liberality should be exercised in granting such amendments. 21 Cal.Jur. pp. 183–186, secs. 127 and 128. The complaint was filed in this case June 26, 1946, but the cause was not tried until May 14, 1947. In the meantime the former suit of the husband was tried and judgment was rendered against the plaintiff October 31, 1946. A motion for new trial was not denied in that case until December 2, 1946, and the judgment did not become final until after that date. On motion of the defendant in this case, after the former judgment became final, the order was properly made authorizing him to file an amendment to his answer setting up the former judgment as a bar and as res judicata. There was no abuse of discretion in making that order. The trial of the issues of res judicata and estoppel were heard by the court, sitting without a jury, by stipulation of respective parties. The plaintiff participated in that trial. Evidence was adduced thereat. There was no error in that proceeding.

For the foregoing reasons the judgment and the order are affirmed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.