Opinion
5-3-1956
Leola WASHINGTON, a/k/a L. W. Holmes, Plaintiff and Respondent, v. George WASHINGTON, Defendant and Appellant.* Civ. 16636.
Edward D. Mabson, San Francisco, for appellant. Carl B. Metoyer, Terry A. Francois, Murville C. Abels, San Francisco, for respondent.
Leola WASHINGTON, a/k/a L. W. Holmes, Plaintiff and Respondent,
v.
George WASHINGTON, Defendant and Appellant.*
May 3, 1956.
Rehearing Denied June 1, 1956.
Hearing Granted June 27, 1956.
Edward D. Mabson, San Francisco, for appellant.
Carl B. Metoyer, Terry A. Francois, Murville C. Abels, San Francisco, for respondent.
DOOLING, Justice.
Defendant, George Washington, appeals from a judgment of the superior court that a certain cause of action growing out of personal injuries suffered by him on September 18, 1948, was at the time it arose, the community property of plaintiff, Leola Washington, and appellant; that upon the rendition of the Final Decree of Divorce between respondent and appellant the parties became the owners of that cause of action for personal injuries and the resulting judgment as tenants in common and that respondent and appellant are each the owners of a one-half interest in the judgment entered in the personal injury action above referred to subject to the payment of certain attorneys' fees and costs in that action. Appellant also requests a review of an order denying his motion for a new trial. (In his opening brief appellant states that he is also appealing from an order denying a nonsuit. Since such order is non-appealable, the attempted appeal from it will be disregarded.)
Appellant and respondent married on October 10, 1944, and separated August 10, 1946. Respondent wife filed a divorce action against appellant on October 9, 1946. Appellant husband suffered personal injuries in an accident on September 18, 1948. He filed an action on November 4, 1948, against the City and County of San Francisco and one Melvin E. Garner to recover for these injuries. On March 20, 1950, respondent was granted an interlocutory decree of divorce. A personal injury judgment in favor of appellant became final April 19, 1954. Respondent filed the present action for partition and declaratory relief asserting an interest in the personal injury judgment on June 21, 1954.
It is alleged in the complaint in this action that 'the pleadings in said divorce action contained no allegation and tendered no issue concerning the said cause of action for personal injuries and the said Interlocutory Decree of Divorce made no disposition of the said cause of action or proceeds from the same * * * that said Final Judgment of Divorce made no disposition of said cause of action for personal injuries or the proceeds from same.' These allegations were expressly admitted in appellant's Answer.
These admitted facts would bring into play the settled rule, restated with a full consideration of the case law on the subject, in Estate of Williams, 36 Cal.2d 289, 292-293, 223 P.2d 248, 251, 22 A.L.R.2d 716: 'The parties to a divorce action may seek a determination of their property rights, but such an issue is not essential to the action. If it does not appear from the decree that property rights were determined by it, they are not deemed to have been adjudicated and may be the subject of an independent action.'
These property rights originated in the injury to appellant on September 18, 1948, long after the filing of the complaint in this action. The rule announced in Brown v. Brown, 170 Cal. 1, 7, 147 P. 1168, 1171, thus becomes applicable, that 'the judgment of divorce will not prevent plaintiff from claiming an interest in community property acquired after the beginning of the action and before the final judgment, if there was no issue tendered in that action concerning such property.' This is but a particular application of the general rule stated in Yager v. Yager, 7 Cal.2d 213, 217, 60 P.2d 422, 425, 106 A.L.R. 664: 'It is a general rule that a party cannot put in issue rights acquired pendente lite unless a supplemental pleading is filed, and, if such a pleading is not filed, he is not foreclosed from asserting such rights in a subsequent action.'
Appellant, however, claims that since his cause of action for personal injuries arose after the separation of the parties it did not become community property. It is clear that ordinarily a cause of action for personal injuries to one spouse arising during marriage is community property. Kesler v. Pabst, 43 Cal.2d 254, 273 P.2d 257. At the time that this property right accrued to appellant, i. e. the date of his injury, property acquired by a husband was community property of the spouses even though they were living separate and apart, although the earnings and accumulations of the wife under such circumstances were her separate property. 10 Cal.Jur.2d, Community Property, § 26, p. 693; Civ.Code, § 169. Certain changes since made in the law, Civ.Code § 169.1 in 1951 and § 175 in 1955, cannot affect the wife's community interest acquired in 1950. The exact contention now asserted by appellant was disposed of by this court in Randolph v. Randolph, 118 Cal.App.2d 584, 585, 258 P.2d 547, 548, where we paraphrased De Funiak on Community Property: 'the later American cases * * * give the wife an interest in all such property acquired by either party as is community property according to statute until the marital community is terminated by death or judicial decree.' (Hearing denied by Supreme Court.)
The language in some of the decisions concerning the right to recover damages for personal injuries 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'. Emphasis ours; Flores v. Brown, 39 Cal.2d 622, 630, 248 P.2d 922, 926; Kesler v. Pabst, supra, 43 Cal.2d 254, 256, 273 P.2d 257, is explainable in view of Civil Code section 169 making the earnings and accumulations of the wife her separate property while she is living separate and apart from her husband. This language is not to be taken as indicating that the earnings and accumulations of the husband, where the spouses are living separate and apart, are not community property in view of the statutory law and the decisions above referred to.
Appellant's claim that the complaint did not state a cause of action for declaratory relief is not tenable. The complaint alleged that respondent claimed an interest as tenant in common in the judgment for appellant's personal injuries, whereas appellant claimed such judgment as his separate personal property. 15 Cal.Jur.2d, Declaratory Relief, § 76, p. 238.
Appellant argues that the court lacked jurisdiction because too long a time elapsed between the accrual of his cause of action for personal injuries and the commencement of this action. The statute of limitations was not pleaded and this mounts to a waiver of that defense. 16 Cal.Jur. Limitation of Actions, § 199, p. 603.
Appellant's contention that the court erred in failing to find the date of the separation of the parties is immaterial in view of our conclusion that at the time when plaintiff received his injuries his cause of action became community property despite the separation of the spouses.
Judgment affirmed.
NOURSE, P. J., and KAUFMAN, J., concur. On Petition for Rehearing.
PER CURIAM.
In his petition for rehearing appellant includes a photostatic copy of an amendment to his answer alleging that the action is barred under Code of Civil Procedure section 343. This pleading is not included in the record on appeal and for that reason is not properly before us; but even if it could be considered it would not aid appellant, since an action by a tenant in common for his share of the common property is not subject to the limitation of that section. Adams v. Hopkins, 144 Cal. 19, 27, 77 P. 712.
The petition for rehearing is denied. --------------- * Opinion vacated 302 P.2d 569.