Opinion
Reheariang Granted April 28, 1948.
Appeal from Superior Court, Merced County; R. R. Sischo, Judge.
Action by John Reginald Luis, a minor, by his guardian ad litem, Angelina E. Luis, and by Angelina E. Luis individually, against Orlo C. Cavin, the Lumber & Supply Company, Joseph Silva, Jr., and Jack R. McKenzie, to recover for the death of Frank George Luis, deceased, who was the father of the minor and divorced husband of Angelina E. Luis, as result of an automobile collision. From a joint judgment in favor of the plaintiffs, which was reduced to $25,000 on a motion for a new trial, the defendants appeal.
Judgment reversed. COUNSEL
Ray W. Hays, of Fresno, for appellants Lumber & Supply Co. and another.
Chester O. Hansen and John Said, both of Fresno, for other appellants.
C. Ray Robinson and Russell F. King, both of Merced, for respondent.
OPINION
THOMPSON, Justice.
From a joint judgment in favor of plaintiffs, which was reduced to $25,000 upon a motion for new trial, after a verdict had been returned for a larger amount, two separate appeals have been perfected. A suit for damages for the death of Frank George Luis was commenced by his wife Angelina E. Luis, individually and as guardian ad litem of their infant son, John Reginald Luis, for the concurrent negligence of the drivers of three motor vehicles which were involved in a collision on the public highway at the point where it passes beneath a railroad bridge near Livingston in Merced County. The accident occurred about 7 o’clock P. M., October 24, 1945, at the underpass of a four-lane highway which was separated by an intervening seven-foot graveled strip. The machines were traveling along the highway extending northwesterly toward Turlock. The foremost truck was loaded with a harvesting machine to a height of 17 feet above the pavement, contrary to Section 697 of the Vehicle Code, which prevented it from clearing the overhead bridge. That truck was therefore forced to stop in the undercut. Two other machines, which were following the truck, were forced to stop, obstructing the entire easterly passageway. Mr. Luis, who was driving his Buick automobile, came upon the stalled cars without previous warning, and crashed into one of them, resulting in his death.
Prior to the accident the deceased and his wife were living separate and apart from each other. She procured an interlocutory decree of divorce on August 24, 1945. They had previously executed a written agreement, settling their property rights, which was approved, adopted and included in the interlocutory decree.
A demurrer to the complaint was overruled. But the demurrer did not raise the question of misjoinder of party plaintiffs. At the trial a motion for nonsuit was granted as to the defendant Joseph L. Vierra. The jury returned a verdict in favor of the defendant, Richard Arthur Morrow. A joint and several judgment was rendered against the other defendants, as previously stated. From that judgment the Lumber Company, which owned the foremost truck, and Silva, who was operating it, appealed. The defendants Cavin and McKenzie joined in a separate appeal from the judgment.
The appellants Lumber Company and Silva contend that the evidence fails to support the judgment against them; that their acts were not a proximate cause of the accident; that the deceased, Luis, was guilty of contributory negligence which precludes plaintiffs from recovery; that Mrs. Luis, in her individual capacity, was not a proper party plaintiff and was barred from recovering damages for the death of her husband by the terms of their previous written property settlement agreement, and that the court erred in giving to the jury and in refusing to give certain instructions.
The appellants Cavin and McKenzie do not contend their acts did not proximately contribute to the accident which caused the death of Mr. Luis, but they do assert that the court erred in admitting evidence, over their objection, that an insurance company compromised and paid to the codefendant, Morrow, his claim for damages growing out of the same collision; that the court erred in instructing the jury with respect to the right of plaintiff, Mrs. Luis, in her personal capacity to recover damages, in view of her previous settlement of property rights with her husband, and that the trial judge was guilty of prejudicial misconduct in his reply to a statement made by Harold Johnson, a prospective juror, on his voir dire examination, addressed to the trial judge, as follows: ‘I don’t think it is customary for either the defense or the plaintiff to allow insurance agents to sit upon a panel of this type due to the nature of our business, and if that is true why it might possibly be that I could be dismissed.’ To that inquiry the judge replied, ‘I suspect that there is a possibility that you may be, but I am not in a position to do that.’ The juror was subsequently excused.
We are convinced the judgment for damages in favor of Angelina E. Luis, individually, is not supported by the evidence. There is no evidence that she suffered compensable detriment as provided by Section 3281 of the Civil Code, on account of the death of her husband. She waived all her claims and rights to alimony, maintenance, support, costs and inheritance from her husband’s estate, by the express terms of her property settlement agreement, which was in full force and effect at the time of his death. That agreement was quoted, adopted, ratified and directed to be enforced by the terms of the interlocutory decree. There is no evidence of an actual reconciliation of the spouses, or of a rescission of the property agreement. The court erroneously instructed the jury, in effect, that Mrs. Luis might be individually entitled to recover damages, and that a reconciliation at any time within twelve months from the granting of the interlocutory decree would have the effect of nullifying and invalidatiang the property agreement and the divorce proceeding. In neither the verdict nor the judgment are the damages which were awarded to Mrs. Luis individually, and to the minor child, segregated. It is impossible to determine what proportion of the judgment was intended to compensate either of the plaintiffs. That joint judgment would be proper, provided both parties were entitled to recover some amount of damages. But Mrs. Luis, under the undisputed evidence, was not entitled to recover any sum whatever, and it therefore becomes necessary to reverse the judgment for uncertainty, and because of the erroneous instructions which were given to the jury.
The spouses executed a written settlement of their property rights under Section 159 of the Civil Code. They were living separate and apart from each other at the time of the death of Mr. Luis. That agreement was incorporated in, and directed to be fulfilled by, the terms of the interlocutory decree of divorce. The agreement provides that two $1,000 policies on the life of the husband shall be made payable to the minor child and that one $500 United States Government bond and a specified amount of money on deposit in a bank shall be conveyed to the child. The balance of their community property was specifically divided between the spouses. The agreement then provides that each party thereby waives all rights to any other property of the other party then owned or thereafter acquired, and to all rights which he or she might otherwise acquire in the estate of the other party, at death, by will, succession, inheritance, or otherwise. The agreement further waives all claims and rights of each party against the other for alimony, maintenance, support, homestead, family allowance, inheritance, costs and counsel fees ‘from the date of this agreement to the end of the world.’ It declares that, in the event of a subsequent suit for divorce, the agreement shall be presented to the divorce court with a request that it be adopted and made a part of the decree which may be rendered.
The respondents contend that the widow of the deceased husband was authorized, under Section 377 of the Code of Civil Procedure, as his ‘heir’, to maintain the action, in her individual capacity, for damages sustained by her on account of his wrongful death caused by the negligence of the appellants, and that a joint judgment in favor of the widow individually and the minor child, in an unsevered lump sum, was the only proper one that could be rendered. Rickards v. Noonan, 40 Cal.App.2d 266, 271, 104 P.2d 839. They assert that the appellants waived their right to object to a misjoinder of parties plaintiff by failing to demur to the complaint on that ground and cite Fuentes v. Tucker, __ Cal.App. __, 175 P.2d 867. We do not question the application of that rule under proper circumstances. But the waiver of the widow’s right of action by the terms of a previous property settlement agreement and a subsequent interlocutory decree of divorce in which the agreement is incorporated and directed to be enforced, was not involved in that case. A hearing was granted by the Supreme Court. Fuentes v. Tucker, 31 Cal.2d 1, 187 P.2d 752. In the present case the complaint failed to mention either the property settlement agreement or the divorce proceeding. It merely stated that Angelina E. Luis ‘is the widow of Frank George Luis, now deceased,’ and that plaintiffs are the heirs of the deceased. The separate answers deny that plaintiffs are the heirs of the deceased husband. A demurrer to the complaint on the ground of misjoinder of party plaintiffs would have been ineffectual. The foregoing rule of pleadings does not apply to the issue in this case as to whether there is evidence that Mrs. Luis suffered compensable detriment by the death of her husband. Civil Code, Sec. 3281. In support of the last mentioned issue the respondents assert that the evidence shows a subsequent reconciliation of the spouses which had the effect of abrogating the agreement. But the evidence fails to show a reconciliation of the spouses. It merely shows that the interlocutory decree of divorce was rendered two months before the husband’s death; that it included the terms of the previous property settlement agreement, which were approved and directed to be enforced, and that the husband and wife discussed a possible reconciliation which he proposed. She was then asked, ‘And what was your intention, were you going to eventually grant that reconciliation? ’ to which she replied, ‘Yes, I was.’ That is the entire evidence on the subject of reconciliation. That conversation did not constitute evidence of a reconciliation which restored the marital relations and rescinded the written property settlement agreement. The evidence is uncontradicted that the spouses were living separate and apart at the time of the death of the husband. A written property settlement agreement may not be rescinded by an oral agreement to a future reconciliation which is in no wise executed.
To constitute a reconciliation of marital relations, after a postnuptial written agreement of separation of the spouses and an absolute complete settlement of all present and future property interests, including a waiver of the right of inheritance, and all obligations growing out of the marital relationship, it is necessary that an agreement for reconciliation shall be consummated and executed.
The written property settlement agreement was a contract which the spouses were authorized by statute to make. Civil Code, secs. 158, 159; In re Davis’ Estate, 106 Cal. 453, 455, 39 P. 756. That written contract could be rescinded by its destruction by the consent of the parties with intent to extinguish the obligation, by a written agreement, or by an executed oral agreement. Civil Code, secs. 1698-1700. An oral agreement for the reconciliation of the spouses, who are separated and living apart from each other, will have the effect of abrogatiang their written settlement of property rights only when the oral agreement has been executed by a resumption of their marital relations and legal obligations growing out of that relationship. In re Davis’ Estate, supra; London Guarantee and Accident Co., Ltd. v. Industrial Accident Comm., 181 Cal. 460, 465, 184 P. 864; In re Estate of Hurley, 28 Cal.App.2d 584, 589, 83 P.2d 61; Peters v. Peters, 16 Cal.App.2d 383, 386, 60 P.2d 313; Jones v. Lamont, 118 Cal. 499, 50 P. 766, 62 Am.St.Rep. 251; In re Estate of Boeson, 201 Cal. 36, 42, 255 P. 800; Brown v. Brown, 170 Cal. 1, 7, 147 P. 1168; In re Estate of Martin, 166 Cal. 399, 402, 137 P. 2; Lazar v. Superior Court, 16 Cal.2d 617, 107 P.2d 249; Mundt v. Connecticut General Life Ins. Co., 35 Cal.App.2d 416, 418, 95 P.2d 966; In re Estate of Ruiz, 53 Cal.App.2d 363, 127 P.2d 945; Rickards v. Noonan, supra; 35 A.L.R. 1529, note. It is true that when the written property settlement agreement and the interlocutory decree of divorce fail to determine that all property rights have been settled and such rights have not been waived, or there is adequate proof of actual reconciliation and resumption of marital relations and obligations, the spouse may retain such interest in the estate of the deceased as will entitle her to maintain an action, as an heir, under Section 377 of the Code of Civil Procedure, for damages accruing on account of the death of the spouse caused ‘by the wrongful act or neglect of another.’ Rickards v. Noonan, supra. But, the converse is necessarily true that, when all such rights are determined and expressly waived by the surviving spouse, she would not suffer compensable detriment by his death of a loss of property, alimony, or maintenance, nor would she be deprived of his comfort, society or support, so as to entitle her to damages on that account.
In the Rickards case, supra, upon which the respondents rely, a judgment in favor of the surviving wife whose husband was killed in an automobile casualty, was affirmed. In that case there was no written property settlement agreement, as there was in the present action. The spouses had lived separate and apart, and the wife had procured an interlocutory decree of divorce before his death. There was satisfactory evidence of a complete reconciliation. There was evidence that ‘there was a reconciliation between us’ [40 Cal.App.2d 266, 104 P.2d 840]; he associated with her, paid her money and a portion of her debts, and they engaged in sexual relations. The court specifically found that ‘at the time of his death,’ she was his wife. It is true that they had not ‘yet moved to gether’ into their own home. But the delay in so doing was explained by evidence that he was living with his father who was partially dependent upon him, and to whom he was paying $12.50 per week; that the husband ‘had many bills to pay and he ‘wanted to get on his feet first’ so that their resumed married life would not again fail.’ Upon that evidence the court determined that a reconciliation of the spouses was actually consummated. No such evidence of reconciliation was adduced in the present suit. Mrs. Luis did not even testify that she and her husband had been reconciled. All that she said was that he had proposed a reconciliation, and that it was her intention to ‘eventually grant that reconciliation.’
In the London Guarantee and Accident Company case, supra, an order of the Industrial Accident Commission, awarding the surviving wife compensation on account of the husband’s death, was reversed on appeal. The spouses had been separated and an interlocutory decree of divorce was rendered in favor of the wife, but no order for alimony or maintenance was provided for. There was no property settlement agreement between the spouses in that case. The question of a reconciliation was not involved. The Supreme Court said [181 Cal. 460, 184 P. 867]: ‘An interlocutory judgment of divorce is therefore, so far as it determines the rights of the parties a contract between them. It is temporary and provisional in its nature, it is true, but it settles the rights of the parties for the time being, and until some action, proceeding, or motion is begun to change the status, and some order is made thereon which has that effect, or until they become reconciled and resume marital relations, in which event their mutual obligations are, for the time being at least, restored.’ (Italics added.)
The court held in that case that, because there was no reconciliation of the spouses, and the interlocutory decree of divorce had settled all rights and obligations of the spouses the surviving widow was not entitled to compensation on account of his death.
In Re Estate of Dargie, 162 Cal. 51, 121 P. 320, 321, an order for family allowance to the widow of the decedent was affirmed on appeal. The wife obtained an interlocutory decree of divorce prior to the death of her husband, but the final decree of divorce was not rendered. It was held that she was still his wife at the time of his death, and that she was therefore entitled to family allowance. But in that case there was a complete consummation of their reconciliation. The court said in that regard: ‘The parties afterward became reconciled and lived together as husband and wife .’ There was no property settlement agreement in that case. Those facts distinguish that case from the present one.
Other cases cited and relied upon by respondents may be likewise distinguished.
It may be conceded, as the respondents contend, that Mrs. Luis was entitled to maintain the action for damages under Section 377 of the Code of Civil Procedure (Redfield v. Oakland Consolidated Street Railway Co., 110 Cal. 277, 289, 42 P. 822, 1063; Taylor v. Albion Lumber Co., 176 Cal. 347, 351, 168 P. 348, L.R.A.1918B, 185), and that she would ordinarily be deemed to be his ‘heir’. Knott v. McGilvray, 124 Cal. 128, 56 P. 789; Dickey v. Walrond, 200 Cal. 335, 339, 253 P. 706. But that right to maintain the action for his death would not dispense with the necessity of her proving that she suffered some detriment thereby for whaich she was entitled to compensation. Civil Code, Sec. 3281.
Certainly Mrs. Luis suffered no loss of property, alimony, maintenance or support, on account of his death, for she waived all such rights. Nor did she thereby suffer a loss of advice, comfort or society of her husband, for they had been separated by mutual consent and written agreement for several months, and she had been granted an interlocutory decree of divorce on the ground of his extreme cruelty. We are unable to perceive what detriment she suffered on account of his death which would be legally compensable in this action.
It follows that the court erroneously instructed the jury, under the circumstances of this case, that Mrs. Luis might be awarded damages for ‘pecuniary loss’ suffered by her, and for the reasonable value of ‘comfort, society and protection of the deceased’ of which she had been deprived. The court also misled the jury by instructing it that a reconciliation of the spouses might occur at any time within twelve months after the rendering of the interlocutory decree, which would have the effect of nullifying and invalidating the divorce proceedings. The last mentioned instruction infers that since the deceased was killed before the lapse of twelve months from the rendering of the interlocutory decree, during which period it was possible the spouses might have become reconciled, in spite of the existing property settlement agreement, the jury could award her damages. It disregards the fact that no reconciliation existed at the time of his death, and that none could subsequently occur because he was dead.
At the request of plaintiffs the court instructed the jury, in part, as follows:
‘If * * * you find that the plaintiffs, John Reginald Luis and his mother, Angelina E. Luis, are entitled to a verdict against any defendant or defendants for the death of Frank George Luis, you will reward them such sum as, under all the circumstances of the case, may be just compensation for the pecuniary loss they have suffered by the reason of the death of Frank George Luis.
‘In determining that loss, you may consider the financial support, if any, that plaintiffs were reasonably certain to have received from the earnings and services of Frank George Luis. You may also consider what pecuniary loss, if any, plaintiffs have suffered, and will suffer in the future with reasonable certainty, by being deprived of the comfort, society and protection of the deceased Frank George Luis.
‘In weighing these matters, you may consider the age of the deceased Frank George Luis and of the plaintiffs, the state of health and physical condition of deceased and of plaintiffs as it existed at the time of the death, * * *.
‘If you find that plaintiffs are entitled to a verdict, you may consider as evidence in arriving at the amount of damages, if any, that the expectancy * * * of a woman 25 years old is 38.81 years . * * *
‘If you return a verdict for plaintiffs, it shall be for a single sum, representing the aggregate of the pecuniary loss suffered by the plaintiffs. * * *
‘I instruct you that a divorce does not become final until twelve months after the interlocutory decree of divorce has been granted and that a reconciliation within such twelve months will nullify and invalidate such divorce proceedings .’ (Italics added.)
It will be observed that the jury was clearly instructed that an award of damages might be made to Mrs. Luis, individually, for pecuniary loss, including alimony, maintenance and support, together with her loss of ‘comfort, society and protection of the deceased’, all of which were specifically waived by the express terms of the property settlement agreement which was incorporated in the interlocutory decree and approved and directed to be enforced. Moreover, the last quoted instruction clearly infers that the jury might award Mrs. Luis such damages on the theory that a reconciliation might occur at any time before the final decree of divorce was rendered, which would have the effect of nullifying and invalidating the divorce proceedings, including the property settlement agreement. Since they were not reconciled, and on account of his death a reconciliation was impossible, the last mentioned instruction was erroneous and prejudicial. Because the verdict and judgment are joint, we are unable to determine what proportion was awarded to Mrs. Luis in compensation of her pecuniary loss and for her loss of comfort, society and protection of the deceased, which elements are not supported by the evidence.
In view of the foregoing it is unnecessary for us to determine whether the death of Mr. Luis occurred as the result of his contributory negligence, or as a proximate result of the concurrent negligence of the appellants.
We are, however, satisfied the court did not err in receiving evidence of the compromise and settlement of the claim of the codefendnat Richard A. Morrow by an insurance company. Appellants were not prejudiced thereby. Nor was the trial judge guilty of prejudicial misconduct in his reply to the inquiry of a prospective juror on his voir dire as to whether the respective parties would ‘allow insurance agents to sit’ as jurors at the trial. The plaintiffs did not adduce that inquiry. The reply that ‘I suspect that there is a possibility that you may be’ dismissed as a juror by one of the parties, on that account, is not a statement inferring that the appellants were carrying insurance. They were not thereby prejudiced.
For the foregoing reason, the judgment is reversed.
ADAMS, P. J., and PEEK, J., concur.
Rehearing granted; THOMPSON, J., dissenting.