In this action of Mary Bruton against Charles Joseph Villoria et al., for the recovery of damages sustained as a result of injuries received in a collision of automobiles, plaintiff appeals from a judgment upon verdict in favor of the defendants.
The car in which plaintiff was riding belonged to her husband who was driving, with plaintiff and two children of the parties riding with him.
The answer, in addition to denials, pleaded the defense of negligence on the part of Mr. Bruton in the operation of the car which was alleged to have been the direct and proximate cause of a collision between the two vehicles.
Mr. and Mrs. Bruton were domiciled in the Province of Ontario, Dominion of Canada. It was stipulated that under the law of their domicile no system of community property prevailed. The appeal is argued upon the assumption that the husband would have no ownership or interest in any damages recovered by the wife under the law of their domicile. This appears to be a correct assumption. (The Married Women's Property Act, Rev. Stats., Ontario (1950), ch. 223, § 3(1).)
The parties are in agreement that since the cause of action arose in California and was tried here, the California law with respect to contributory negligence applies. (Rest., Conflict of Laws, § 385.) It is not questioned that as between husband and wife domiciled in California a recovery by the wife for personal injuries would be community property, and if the wife is injured through the negligence of the husband, his negligence will be imputed to her.
The question is, what is the law of California that has application to the admitted facts?
While not questioning that under the applicable law of the Province of Ontario a husband would have no interest in his wife's recovery for her personal injuries defendants contend that that fact is immaterial. They recognize the rule of section 290 of the Restatement, Conflict of Laws, "Interests of one spouse in movables acquired by the other during the marriage are determined by the law of the domicile of the parties when the movables are acquired," but they contend that a cause of action for personal injuries is not a "movable" within this rule, and that it embraces only tangibles acquired in one jurisdiction and carried into another. The term is not used in the Restatement, Conflict of Laws, section 46, in so narrow a sense.
Defendants contend that the law of plaintiff's domicile is inapplicable because her cause of action arose in California, but this contention is exactly contrary to the settled rule.
It is unnecessary to consider whether section 171c
The judgment is reversed.
Wood (Parker), J., and Vallée, J., concurred.
A petition for a rehearing was denied February 21, 1956, and respondents' petition for a hearing by the Supreme Court was denied March 21, 1956.
"c. Things are either tangible or intangible. A tangible thing is one which has physical substance. All other things are intangible....
"Sec. 208.... Special Note: ... The word `movables' is a convenient term to include all kinds of things, whether tangible or intangible, interests in which constitute personal property and is so used throughout the Restatement of this Subject."
"During such time as the wife may have the management, control and disposition of such money, as herein provided, she may not make a gift thereof, or dispose of the same without a valuable consideration, without the written consent of the husband.
"This section shall not be construed as making such money the separate property of the wife, nor as changing the respective interests of the husband and wife in such money, as defined in Section 161a of this code. (Added Stats. 1951, c. 1102, p. 2860, § 1.)"