DOROTHY D. WEST, an Incompetent Person, etc., et al., Respondents, v. CITY OF SAN DIEGO, Appellant, 54 Cal. 2d 469

GIBSON, C. J. Dorothy West was seriously injured and rendered incompetent as the result of a collision between an automobile she was driving and one operated by a police officer, who was killed in the accident.

Her husband, as guardian ad litem, brought suit in her behalf against defendant, the officer’s employer, to recover damages for the injuries she sustained, and in addition he sought redress for himself, alleging permanent loss of his wife’s services and of non-economic aspects of the marriage relationship usually referred to as “consortium.” The jury returned a verdict for plaintiffs, awarding $57,828.89 to the wife and $5,000 to the husband.

Defendant contends that, by reason of the instructions given by the court, the jury was misled as to the effect of the prima facie speed limit and the privileges of a driver of an emergency vehicle. It is also contended that Mr. West was erroneously awarded damages for loss of consortium. The accident occurred during the early afternoon of a clear, dry day in San Diego County on a portion of Highway 101 running north and south. The highway was marked for four lanes of traffic, two in each direction, and there was a raised island in the center.

Defendant’s police car was traveling in the outside northbound lane at a rate of speed variously estimated as between 60 and 85 miles per hour when the officer apparently lost control of the vehicle. It veered across the inside northbound lane, jumped over the center island, and struck three vehicles, demolishing the one driven by Mrs. West, who was using the inside southbound lane. The evidence was conflicting as to whether the officer was in pursuit of a speeder at the time of the accident and whether he was sounding the police car’s siren and shining its red light.

Conflicting inferences could also be drawn as to whether there was a vehicle slightly ahead of the officer in the northbound lane to his left and whether, if so, it suddenly moved to the outside lane directly in front of the officer and caused him to lose control of the police car. The jury was instructed: “The basic speed law of this State, as provided by

Section 510 of our Vehicle Code, is as follows: ‘No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent, having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.’ Prima facie speed limit that was in effect at the time and place of the accident involved in this case was fifty-five miles an hour.” Defendant argues that the jurors may have been unaware of the quotation marks appearing in the instruction, and may therefore have understood the statement concerning the prima facie speed limit to be a part of

section 510. However, the statement referred specifically to “the time and place of the accident involved in this case” and could not reasonably have been interpreted as being part of a statute. Moreover, we cannot assume that the court failed to indicate to the jury, by a pause or otherwise, where the text of

section 510 ended. It is also argued that the jury was erroneously instructed with respect to the privileges of the driver of an authorized emergency vehicle. The court covered this subject at some length in its instructions, one of which set forth the provisions of former

section 454 of the Vehicle Code, which, so far as pertinent here, provided that such a driver, when in pursuit of an actual or suspected violator of the law, was exempt from various traffic regulations, including those relating to speed, if he sounded a siren as reasonably necessary and displayed a red light visible from the front, but that the statute did not protect him from the consequences of an arbitrary exercise of the privileges conferred.

At defendant’s request the jury was told that the term “arbitrary exercise of the privileges” has restricted meaning and that such an exercise takes place only when the driver of an emergency vehicle does something that would constitute negligence in the absence of the exemption and when, in addition, certain specified circumstances exist.

At plaintiffs’ request the court gave the following instruction, which also dealt with the effect of the statutory provision regarding an arbitrary exercise of the privileges: “Section 454 of the Vehicle Code provides: The driver of a motor vehicle could be guilty of wilful misconduct in doing no wrong except driving at a speed which in the attendant circumstances would be excessive and reckless, provided either that in so driving he had knowledge that serious injury to another probably would result, or that he drove at such speed with a wanton and reckless disregard of the possible results, ‘and speed alone may constitute an arbitrary exercise of the privileges extended by

Section 454 of the Vehicle Code.’ ” In the next instruction the jury was told that if a party to the action violated “the statute just read to you,” a presumption of negligence arose which was not conclusive but could be overcome by evidence that his conduct was reasonably excusable.

Defendant contends that the statement concerning speed “alone,” in the instruction given at plaintiffs’ request, when taken together with the instruction given immediately thereafter, may have caused the jury to understand that in spite of the statutory privileges, a verdict against defendant was warranted by the mere fact of a high rate of speed, without regard to the surrounding circumstances.

However, the instructions, when reasonably construed as a whole, informed the jury that speed alone, that is, without any other act, might or might not constitute an arbitrary exercise of the privileges depending upon the surrounding circumstances. Before the statement about speed “alone,” the challenged instruction referred to speed “in the attendant circumstances,” and the conjunction “and” was used between the two parts of the instruction.

Moreover, the instruction given at defendant’s request emphasized that whether an arbitrary exercise occurs must be determined in the light of the circumstances, and, with respect to vehicles in general, another instruction pointed out that speed “considered as an isolated fact and simply in terms of so many miles an hour” was not proof of negligence and that whether a particular rate of speed was negligence depended on all the circumstances.

It is further asserted that the reference to “wilful misconduct” in the instruction given at plaintiffs’ request injected an extraneous issue into the case and that the jury may have believed that there was an exception to

section 454 distinct from an “arbitrary exercise” of the privileges. The terms “arbitrary exercise” and “wilful misconduct” are substantially similar in meaning, where, as here, the latter term is used to describe

an act performed either with knowledge that serious injury to another will probably result or with wanton and reckless disregard of the possible consequences. (Lucas v. City of Los Angeles, 10 Cal.2d 476, 486 [75 P.2d 599]; Raynor v. City of Arcata, 11 Cal.2d 113, 118 [77 P.2d 1054]; Davidson v. County of Marin, 147 Cal.App.2d 54, 62 [304 P.2d 743] ; Goldstein v.

Rogers, 93 Cal.App.2d 201, 207 [208 P.2d 719].) Even if we were to assume that the jury understood that two separate matters were involved, it does not appear how defendant could have been prejudiced since the jury would have been called upon to make substantially the same determinations in regard to each of the terms. At the request of defendant, as well as plaintiffs, the court gave instructions setting forth the rules of law governing liability in cases where the emergency vehicle privileges are not applicable.

Since the evidence was conflicting as to whether the officer was entitled to the privileges, it was proper for the court to give such instructions. It may be noted that all of the instructions requested by defendant on the subject of the emergency vehicle privileges were either given by the court or substantially covered in other instructions, and defendant does not claim that any additional instruction on the subject was necessary or that the instructions on the general rules relating to the issues of negligence gave undue emphasis to that aspect of the case.

The final question is whether the court erred in instructing the jury that, if it should find Mr. West was entitled to recover damages, he should be awarded a sum that would compensate him for “any loss of his wife’s services or society.” A doctor testified that among the severe injuries sustained by Mrs. West was “massive brain atrophy” which reduced her mentality to that of a child four or five years of age and that in his opinion her mental condition would not improve in the future and might worsen. She had been married to Mr. West for 10 years and was 57 years of age when she was injured.

In addition to performing the usual household duties prior to the accident, she assisted him in his garage business, keeping the books, answering the telephone, and running errands. A husband whose wife is negligently injured may recover for loss of her services. (Code Civ. Proc, §427; Acadia, California, Ltd. v. Herbert, ante, p. 328 [5 Cal. Rptr. 686, 353 P.2d 294]; Martin v. Southern Pacific Co. 130 Cal. 285, 287 [62 P. 515]; McKune v. Santa Clara V. M. & L. Co., 110 Cal. 480, 487 [42 P. 980]; Tell v.

Gibson, 66 Cal. 247, 248-249 [5 P. 223].) However, the instruction here was not limited to “services,” but also related to “society” and thus was broad enough to permit recovery for loss of consortium.

At common law in England, based on the now outmoded theory that the wife was the husband’s inferior and occupied a position in relation to him akin to that of a servant to a master, the husband, but not the wife, was allowed to recover for loss of consortium caused by negligence, and a number of American jurisdictions have followed the common law rule. (See Prosser on Torts (2d ed. 1955), 701 et seq. ; 133 A.L.R 1156,1157; 23 A.L.R.2d 1378,1380.) A few courts grant relief to the wife as well as to the husband. (Hitaffer v. Argonne Co., 183 F.2d 811 [overruled on another point in Smither & Co., Inc. v.

Coles, 242 F.2d 220]; Cooney v. Moo-maw, 109 F.Supp. 448; Missouri Pacific Transp. Co. v. Miller, 227 Ark. 351 [299 S.W.2d 41, 45 et seq.]; Brown v. Georgia-Tennessee Coaches, 88 Ga.App. 519 [77 S.E.2d 24] ; Acuff v. Schmit, 248 Iowa 272 [78 N.W.2d 480] ; Montgomery v. Stephan, 359 Mich. 33 [101 N.W.2d 227].) Some jurisdictions deny recovery to both spouses. (Lockwood v. Wilson H. Lee Co., 144 Conn. 155 [128 A.2d 330, 331]; Bolger v. Boston Elevated Ry. Co., 205 Mass. 420 [91 N.E. 389]; Helmstetler v. Duke Power Co., 224 N.C. 821 [32 S.E.2d 611, 613].) In California, more than 40 years ago, the case of Meek v.

Pacific Electric Ry. Co., 175 Cal. 53, 56 [164 P. 1117], in affirming a judgment which awarded a husband damages for loss of his wife’s services and for medical expenses resulting from her injuries, stated by way of dictum that a husband could not recover for loss of his wife’s “society, or what is termed the consortium.” In the opinion the court quoted the provision contained in

section 427 of the Code of Civil Procedure that “in any action brought by the husband and wife, to recover damages caused by any injury to the wife, all consequential damages suffered or sustained by the husband alone, including loss of the services of his said wife, moneys expended and indebtedness incurred by reason of such injury to his said wife, may be alleged and recovered without separately stating such cause of action.” The statement excluding recovery for loss of consortium was thus made in the light of the statute and amounted to a construction of the phrase “consequential damages” as referring only to damages of an economic character, for example, medical expenses and loss of services.

This construction is reasonable, particularly since none of the items listed in the

section after the word “including” is of the noneconomic type coming within the term “consortium.” It may be noted that, before the provision was enacted, courts had used the words “consequential damages” to describe a husband’s medical expenses and loss of services. (Tell v. Gibson, 66 Cal. 247, 248 [5 P. 223]; Matthew v. Central Pac. R. R. Co., 63 Cal. 450, 451.) The dictum in Meek v. Pacific Electric Ry. Co., 175 Cal. 53, 56 [164 P. 1117], was unquestioned as the law of this state until 1955, when Gist v. French, 136 Cal.App.2d 247 [288 P.2d 1003], was decided.

It was held in the Gist case that a husband whose wife had been negligently injured could recover not only for loss of services but also for loss of cohabitation and society, and it was suggested in the opinion that a wife should also be allowed to recover for loss of consortium (136 Cal.App.2d at pp. 255-257). In 1958 this court was called upon to consider the question of recovery for loss of consortium in Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 667 et seq. [328 P.2d 449], where a husband had been negligently injured.

We held that the wife was not entitled to recover, disapproving the dictum to the contrary in the Gist case. In so holding, we discussed the various problems of policy and procedure involved. For example, there is a danger of double recovery, and the loss of such things as companionship and society is indirect only and is difficult to measure in terms of money. If, in the absence of statute, a cause of action in the wife were recognized, courts would be faced with the perplexing task of determining where to draw the line with respect to similar claims by others having a close relationship to the one injured.

We concluded that the Legislature rather than the courts could best deal with these problems and determine whether the wife should be allowed relief. It was pointed out that some of the objections to an action by the wife apply with equal force to one by the husband and that legislation in this field with respect to the husband as well as the wife would be preferable to piecemeal determination of the problems by judicial decision.

There is no sound reason to depart here from the principle that the Legislature is the proper body to decide whether recovery for loss of consortium should be permitted and, if so, under what terms and conditions. Drawing a distinction between spouses on the ground that the husband, unlike the wife, had a right of recovery at common law would be extremely inequitable and, further, would ignore the fact that recognition of his right was based upon the wife’s subservient position in the marriage relationship whereas, under present-day law, spouses are generally regarded as equals.

Nor is such recovery warranted by the provisions of

section 3333 of the Civil Code. That

section merely deals in general terms with the subject of damages in tort cases, and is of no assistance where, as here, the question is whether a particular type of liability is to be judicially recognized in view of the problems of policy and procedure involved. It should also be noted, as stated in Deshotel v. Atchison, T. & S. F. Ry. Co., 50 Cal.2d 664, 669 [328 P.2d 449], that wrongful death cases are not in point since they were decided under a special statute. Meek v. Pacific Electric Ry.

Co., 175 Cal. 53, 56 [164 P. 1117], correctly states the law applicable to both spouses, and the contrary holding in Gist v. French, 136 Cal.App.2d 247, 255 [288 P.2d 1003], is disapproved. In view of the instruction which erroneously permitted the jury to award damages for loss of consortium, the $5,000 verdict in favor of Mr. West may have included such an allowance, and, since the extent to which this may have been true cannot be ascertained, the judgment must be set aside insofar as it is in his favor.

It will not be necessary, however, to retry the issue of liability in order to determine the amount of damages properly allowable to him. As to Mrs. West the judgment is affirmed; as to Mr. West it is reversed with directions to retry the issue of damages alone and to enter judgment in accordance with the determination of that issue. Plaintiffs are to recover costs on appeal. Traynor, J., White, J., and Dooling, J., concurred. The provisions of

section 510 are now found in

section 22350 of the Vehicle Code, as recodified in 1959. The provisions of

section 454 were changed when the Vehicle Code was recodified in 1959 and are now found in sections 21055 and 21056. The portion of the instruction requested by plaintiffs which appears within single quotation marks is contained in a separate paragraph. As indicated, it is preceded by a period after the word “results” and the first word ‘1 and ’ ’ is not capitalized. At the time of the accident

section 513 of the Vehicle Code (now § 40831) provided that operation of a vehicle in excess of a prima facie speed limit was not negligence as a matter of law but must be shown to have been negligence as a matter of fact. There was then no maximum speed limit as is now provided for in

section

Section 3333 of the Civil Code provides: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. ’ ’