Cox v. Kaufman

DOOLING, J.

Plaintiff appeals from a judgment of non-suit entered in favor of defendant Ida Kaufman at the close of the plaintiff’s case.

Defendants Charles Kaufman and Ida Kaufman are husband and wife. At the time of the injuries to plaintiff the Kaufmans were both employed by the same employer. On certain days of the week Mrs. Kaufman’s employment commenced at an earlier hour than that of her husband and on such days Mr. Kaufman was in the habit of driving Mrs. Kaufman to their common place of employment. ■ On such occasions they made only one trip and Mr. Kaufman would remain at their place of employment until his hours of employment com

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menced. The morning when the car driven by Mr. Kaufman struck and injured plaintiff was one of those on which Mrs. Kaufman was required to begin her work at an earlier hour than her husband, and Mr. Kaufman was taking his wife to their place of employment at the time. It was stipulated that the automobile which Mr. Kaufman was driving had been purchased by him with community funds and that the car was registered in the name of Mr. Kaufman as owner.

Although registered in Mr. Kaufman’s name the automobile, having been purchased with community funds, was the community property of the spouses. (3 Cal.Jur. 10-Yr. Supp. 521.) Under section 161a of the Civil Code the wife now has a “present, existing and equal” interest in the community property. Section 402 of the Vehicle Code imposes a liability upon the owner of an automobile for the negligence of any person using or operating it with the owner’s consent, express or implied, and appellant argues that because of Mrs. Kaufman’s community interest in the automobile she is an owner within the meaning of this section of the Vehicle Code. This may be conceded but the question still remains whether under our law a husband using or operating an automobile which is community property may be said to be doing so with the express or implied consent of his wife so as to make her liable 73nder Vehicle Code, section 402.

Civil Code, section 161a reads: ‘' The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests under the management and control of the husband as is provided in sections 172 and 172a of the Civil Code. This section shall be construed as defining the respective interests and rights of husband and wife in the community property. ’ ’