Ferguson v. Rogers

SHEPARD, J.

Plaintiff and her husband sued defendants to recover damages for personal injuries alleged to have been suffered by each of them as the result of a collision between the auto which he was driving and in which she was riding, and a vehicle being operated by defendants on January 27, 1956. Negligence and contributory negligence were pleaded. There was sufficient evidence from which the jury could have found that either or both of the drivers were negligent.

By a post accident property settlement agreement plaintiff-appellant’s husband relinquished all interest in her claim for damages and agreed that any recovery thereon would be the sole and separate property of appellant wife. The trial court sustained an objection to appellant’s attempt to place this post accident property settlement agreement in evidence.

The plaintiff-appellant’s proffered instruction that the wife was not bound by the contributory negligence of the husband was refused by the trial court and instead thereof an instruction was given to the general effect that the negligence, if any, of her husband must be imputed to this plaintiff-appellant. The jury returned a verdict against both plaintiffs. The husband did not appeal. Appellant herein appeals from the judgment entered pursuant to said verdict, and from the order denying the motion for a new trial.

Appellant contends that the trial court erred in sustaining defendant’s objection to the post accident settlement agreement, in refusing to give appellant’s proposed instruction that appellant was not bound by her husband’s contributory negligence, and in the giving of the instruction that the husband’s negligence, if any, is imputed to this appellant. Appellant does not criticize the form of the instruction, but rests her appeal squarely on the proposition that because of the

[488]

legislative trend shown by the amendments of section 171c and new section 163.5 of our Civil Code, the court should change the rule regarding imputation of spouse driver contributory negligence to spouse passenger.

The facts in the case at bar are similar to those in

Kesler

v.