Washington v. Washington

In no uncertain terms the Legislature has classified property owned by spouses before marriage and property acquired by them after marriage. Since 1872 section 162 of the Civil Code has provided that “All property of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, . . . is her separate property.” And for a like period section 163 of the same code has provided that, “All property owned by the husband before marriage, and that acquired afterward by gift, bequest, devise and descent, ... is his separate property.” Section 164 then and since has provided that, “All other property acquired after marriage by either husband or wife, or both ... is community property.”

Without question the right of action acquired by the defendant was property. It was a chose in action and personal property as defined by section 14 of the Civil Code. (See also 6 West’s Anno.Cal. Code, p. 67, and cases cited in n. 15.) It was acquired during the marriage and lifetime of the spouses and before the entry of the interlocutory decree. That decree did not sever the marriage relationship. On the record here presented the cause of action and the fund…

Plaintiff and defendant were married in October, 1944, and separated in August, 1946. There was one child of the marriage. In October, 1946, plaintiff filed an action for divorce on the grounds of extreme cruelty, and defendant answered putting the existing property rights of the parties in issue. In September, 1948, defendant lost a leg as a result of a collision between a San Francisco police car and a car driven by Mervin E. Garner. He filed an action against the city and county of San Francisco and *251 Garner, and in December, 1950, the jury returned a verdict against both defendants for $85,000. Judgment was entered on the verdict against Garner, but the trial court granted the city and county’s motion for judgment notwithstanding the verdict. The judgment against Garner became final in August, 1951, after he dismissed his appeal. The judgment in favor of the city and county was reversed on appeal with directions to enter judgment on the verdict. The city and county then moved for a new trial, and following the denial of its motion, appealed from the judgment, which was affirmed and became final in April, 1954. In the meantime, the divorce action was brought to trial, and an…

I concur in the result reached in the majority opinion.

I think it is clear, however, that this court now recognizes that its former opinions, holding that causes of action for personal injuries are community property, are unrealistic and outmoded.

In Zaragosa v. Craven, 33 Cal.2d 315 [ 202 P.2d 73 , 6 A.L.R. 2d 461 ], in which I dissented, it was held that “. . . it must be considered as the present law of this state that the cause of action for personal injuries suffered by either spouse during marriage, to whatever extent such cause of action may constitute property (see p. 725, Franklin v. Franklin, supra [ 67 Cal.App.2d 717 ( 155 P.2d 637 )]), as well as any recovery therefor, constitutes community property—at least in the absence of agreement otherwise between the spouses. Any contrary implications which may be derived from the language of the Franklin case are disapproved.”

The accident here involved occurred after the plaintiff had sued for divorce, but before the interlocutory decree was entered. The parties were therefore still husband and wife despite the fact that the divorce action had been filed almost two years prior to the accident in which defendant was…