Meier v. Wagner

Action by plaintiffs who are husband and wife, to recover damages for and in consequence of personal injuries alleged to have been sustained by plaintiff Sophie Meier as a result of defendant’s negligence. Judgment in accordance with the verdict of a jury was entered in favor of plaintiffs, from which, and on order of court denying his motion for a new trial, defendant appeals.

Appellant insists that the evidence is insufficient to justify the verdict in that it fails to show negligence on the part of defendant in operating his car, or that his negligent act, if such was established, was the proximate cause of the injury sustained by plaintiff. The evidence clearly tended to show that at the time of the collision, when it was dark, while defendant was driving along the street at a speed of from twenty-five to thirty miles per hour, without any front lights on his car, holding the wheel with one hand, and, instead of looking ahead, gazing in a direction at right angles to the street over and along which he was traveling, his automobile collided with plaintiff, as- a result of which she was caught or lodged upon the fender of the car and dragged a distance of fifteen or twenty feet. Also that defendant admitted that he felt “the impact and something dragging,

Several alleged errors are predicated upon rulings of the court in admitting evidence over defendant’s objections. The testimony of witness Sontag, to the effect that on the next morning following the injury to plaintiff he visited the place where the collision occurred and found, alongside a trail of blood, the track or imprint of a wheel made under restraint of brakes applied thereto, was properly admitted as a circumstance corroborating the testimony of other witnesses that plaintiff, when struck by the fender of defendant’s car, was dragged along the street for some distance, until defendant stopped his car. The waist worn by plaintiff at the time of the collision, and for damage to which with other clothing she asked special damages, was produced before the jury and plaintiff permitted to testify as to its condition at the time immediately preceding the injury. Objection was made upon the ground that a proper foundation for its admission was not laid. True, the court should have required plaintiff to show that its then condition was that in which it was found immediately after the collision. The error, however, is trivial and cannot be regarded as prejudicial. Witnesses were called who testified that in driving a car of the type operated by defendant at a speed of twenty-five to thirty miles per hour, they could, assuming that the brakes were in proper condition, and depending to some extent upon the resistance or traction of the road, stop the car within a distance of fifteen to twenty feet, and that traveling at such speed and observing a person eight or ten feet in front of the car, they could avoid a collision with such person. This evidence, for several reasons, should not have been admitted. Defendant’s duty was not to be measured by a standard fixed by what an expert driver could do in stopping his car and avoiding a collision. Moreover, it was likewise immaterial, since the only defense pleaded was that defendant’s automobile did not collide with plaintiff, but that in traveling along the street he saw her lying in the center thereof, apparently unconscious, she having been struck by some other vehicle or object before defendant arrived at said point, and that upon seeing her

Defendant demurred generally to the complaint and also alleged a misjoinder of causes of action and misjoinder of parties plaintiff therein, which demurrer was overruled.

The allegations of the complaint as to how or wherein defendant was negligent in the operation of his'car are exceedingly meager. While it is stated that defendant was running his car at a high and fast rate of speed, it is not alleged that the collision occurred by reason thereof, but merely that he negligently and without warning to plaintiff, collided with and struck her with his said automobile. We are not prepared, however, to hold that the allegations are so wholly defective as to render the complaint subject to a general demurrer, and no attack thereon by special demurrer is made.

We are of the opinion that the special demurrer should have been sustained upon both grounds stated. The primary cause of action was the personal injuries sustained by the wife, and notwithstanding such right of action and moneys recovered thereon constitute community property over which the husband exercises control, it is settled by a long line of decisions that in an action for the recovery thereof the wife is a necessary party plaintiff. (McKune v. Santa Clara etc. Co., 110 Cal. 480 , [ 42 Pac. 980 ] ; Gomez v. Scanlan, 155 Cal. 530 , [ 102 Pac. 12 ] ; Williams v. Casebeer, 126 Cal. 82 , [ 58 Pac. 380 ].) “In general, the husband is the only party entitled to sue in respect to community property and the wife is neither a necessary nor a proper party to such suit. So far as we are advised, the sole exception to this rule is the case of an action for damages for injury and suffering of the wife caused by a personal injury to her.” (Moody v. Southern Pacific Co., 167 Cal. 786 , [ 141 Pac. 388 ].) The right to recover damages sustained in consequence of the personal injuries and due to expenditures made for the services of nurses, medical treatment, and increased household expenses, ■ constitutes a cause of action in favor of the husband alone,

Such misjoinder, however, in no wise prevented a full, fair, and complete trial of the issues presented, which, in the absence of the rule stated, might, without prejudice to defendant, have been included in one action prosecuted by the husband and wife as plaintiffs. The fact that the judgment and proceeds thereof are, as community property, subject to the exclusive control of the husband, constitutes a bar to a further action by him to recover the consequential damages alleged in the complaint herein. The error, since it is purely technical and did not deprive defendant of any substantial right, or affect the merits of the case, falls within the provision of section 4]/2 of article VI of the constitution, which provides that “no judgment shall be set aside, or new trial granted . . . for error as to any matter of pleading, . . . unless . . . the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Upon the record presented it is the duty of the court, under this provision of the constitution, to disregard the error due to noncompliance with the statutory requirement, and

Conrey, P. J., and James, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 1, 1915, 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 August 5, 1915.