Justis v. Atchison, Topeka & Santa Fe Railway Co.

This is an action to recover damages for injuries received by the plaintiff Minnie Justis while riding as a passenger upon one of defendant’s trains through the territory of Arizona, she having a ticket, issued by defendant’s agent, entitling her to passage from Los Angeles, California, to Kansas City, Missouri. Judgment was for plaintiffs in the sum of $1,975, and defendant appeals from the judgment.

We are much inclined to the view of respondents’ counsel that the discussion of the cause of action before us upon the theory that it is an ordinary action sounding in tort has '“led us a chase in the wilderness.” Section 2100 of the Civil Code of the state provides that “a carrier of persons for reward must use the utmost care and diligence for their safe ■carriage, ’ ’ etc. In applying this section to instructions given in cases relating to injury to passengers of common carriers, the rule relating to such cases clearly distinguishes them from ordinary actions in tort. (Kline v. Santa Barbara, 150 Cal. 741 , [ 90 Pac. 125 ]; Valente v. Sierra Ry,, 151 Cal. 534 , [ 91 Pac. 481 ].) Even at common law the party injured might in such a case elect between the breach of the contract to deliver him in safety and the wrong which justified an action ex delicto. {Sheldon v. Steamship Uncle Sam, 18 Cal. 527 , 534, [ 79 Am. Dec. 193 ].)

The complaint here states a cause of action against the defendant for a violation of the obligation assumed by it to carry Mrs. Justis in safety to her destination, as indicated by the ticket which its agent sold- to her. While the ticket purchased by her, when considered alone, might be deemed merely a receipt, containing only a part of the contract made, yet it was evidence that there was a contract. It was evidence of the payment of her fare and of her right to be carried according to its terms, even though it did not express all the terms of the contract. {Sloane v. Southern Cal. Ry. Co., 111 Cal. 685 , [44 Pad. 320] ; Ames v. Southern Pacific Co., 141 Cal. 728 , 732, 734, [ 99 Am. St. Rep. 98 , 75 Pac. 310 ].) The facts alleged in the complaint sufficiently state

The right to recover damages for such an injury by a judicial proceeding is property in this state (Civ. Code, sec. 953); and when acquired after marriage by husband or wife, or both, it is community property. (Civ. Code, sec. 164; McFadden v. Santa Ana, 87 Cal. 464 , [ 25 Pac. 681 ]; Neale v. Railway Co., 94 Cal. 425 , [ 29 Pac. 954 ].) The right of action for an injury to the wife and the money recovered therefrom being community property, the wife could not bring an action without making her husband a party, and could not, of course, alone, execute a release or satisfaction of the obligation. The husband and wife, however, may join in such an action. (Williams v. Casebeer, 126 Cal. 82 , [ 58 Pac. 380 ] ; Paine v. San Bernardino, 143 Cal. 658 , [ 77 Pac. 659 ].) As the wife alone could not release the obligation of defendant to the community for her injury, neither could she elect the form of action in which the damages for that injury could be recovered.

While the complaint and findings, in the absence of demurrer to the former, sustain the judgment upon the theory that the action is on the contract, the complaint supports and the evidence justifies the finding of the trial court that, “under the laws of Arizona, a cause of action for such personal injuries to the wife and the fruits thereof were community property,” if the action be considered as based upon the tort instead of the contract. The same conclusion would be reached whether the Arizona law introduced is considered' as “evidence,” or as a law to be construed as such, notwithstanding it is required by the statute to be introduced in evidence in the same manner as the facts in the case. (Code Civ. Proc., secs. 1900, 1901, 1902 and 1963; Cummings v. O’Brien, 122 Cal. 204 , [ 54 Pac. 742 ].)

Of the sections of the Eevised Statutes of Arizona contained in the record only sections 3104, 3106 and 3111 need

Respondents contend that the section is but the useless relict of a departed condition; a condition which existed at the engrafting of community rights into the American system in all the Pacific Coast states and territories when that territory became a part of the United States, and which, having served its purpose, has, in all the other jurisdictions, been removed from the statute books by appropriate legislation. There is much to sustain this view, but we do not think we are driven to the necessity of accepting either the impossible and inconsistent construction of section 3111 by appellant, or to eliminate the section from consideration on the ground of decay, disuse or laches, as urged by respondents. The reasonable interpretation of it would seem to be that it was intended to admit certain persons married out of the territory to the benefits of the community laws of the territory. Of those not affected by the express terms of the section, the resident whose marriage occurred in the territory, ¡under the laws of the territory, would be governed by its general laws. Persons married out of the territory and who have not moved into it would be governed, as to personal property acquired by them in the territory, by the well-established, almost universally acknowledged rule, that the law of the domicile must prevail in the absence of express statutory provision. The law of California thereby became the law of Arizona as to these plaintiffs, and the finding of the trial court that the cause of action for the personal injuries to the wife was com

Judgment affirmed.

Shaw, J., and Allen, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on March 12, 1910, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 12, 1910.