Lichtenauer v. Dorstewitz

FORD, J.

This is an appeal from an order striking the plaintiffs’ cost bill. Emil Lichtenauer and Pearl I. Lichtenauer, husband and wife, brought the present action to re

[778]

cover damages for personal injuries alleged to have been caused by the negligence of the defendants. The accident occurred on October 18, 1958. The cause of action of each plaintiff was stated separately. Mr. Lichtenauer sought general damages in the amount of $75,000, together with special damages. In addition to special damages, Mrs. Lichtenauer prayed for general damages in the amount of $50,000. Upon the trial the jury rendered its verdict in favor of Mr. Liehtenauer for the sum of $3,000 and in favor of Mrs. Lichtenauer for the sum of $2,000, each award being in an amount for which recovery could have been had in the municipal court. No order was sought or made in the superior court for the allowance of costs to the plaintiffs pursuant to the provisions of section 1032 of the Code of Civil Procedure.

1

However, apparently on the assumption that the plaintiffs were entitled to costs as a matter of right because the total of the amounts awarded was $5,000 and thus in excess of the then monetary jurisdiction of the municipal court, the plaintiffs filed a cost bill. The propriety of the order of the trial court striking that cost bill is the question here presented.

We have reached the conclusion that the order of the court below was correct. There would be merit in the plaintiffs’ position if the damages awarded constituted community property because the husband and wife would then be jointly interested in the total amount recovered.

(Frost

v.

Mighetto,

22 Cal.App.2d 612, 615 [71 P.2d 932]; see

Thomas

v.

Smith, 2

Cal.App.2d 701 [38 P.2d 827].) However, the accident in the present case occurred after the addition of section 163.5 to the Civil Code in 1957. That section is as follows: “All damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person.” Consequently, each spouse in the present case had no interest in the amount adjudged to be due the other.