Luis v. Cavin ( 1948 )

THOMPSON, J.

I dissent.

The majority opinion affirms a joint judgment of $25,000 rendered in favor of the surviving wife, individually, and the guardian ad litem of an infant child, in a suit for damages for the wrongful death of her husband as the result of an automobile casualty. The jury was erroneously instructed to consider elements of damages to be awarded to the wife, individually, which she had specifically waived by the terms of a property settlement agreement which was in full force. It is impossible to determine what portion of the point judgment represents the unauthorized award to the wife.

The evidence is undisputed that the spouses were living separate and apart at the time of the accident. A complete settlement of property rights was previously executed in writing and remained in full force. The only reservation which it contained was the husband’s agreement to pay his wife $25 per month for the care of the child, and to furnish it with necessary clothing and medical aid. An interlocutory decree of divorce was rendered two months before the accident occurred. The decree included the entire property-settlement agreement and directed its enforcement. No reconciliation was effected. With the exception previously mentioned, the wife had waived all property rights on account of her husband’s death. The evidence does not support the judgment in that regard. For a more complete statement of the facts and issues I refer to our original opinion filed in this case (Luis v. Cavin, 84 A.C.A. 787, 191 P.2d 527), from which a rehearing was granted.

In view of the binding force of the property settlement agreement, I am convinced the jury was erroneously instructed, in effect, that, in awarding damages to the wife, as distinguished from the damages to which the child was entitled, it should take into consideration her loss of “financial support ... from the earnings and services of Frank George Luis,” and the “pecuniary loss” she would sustain “and will suffer in the future ... by being deprived of the comfort, society and protection of the deceased.” The jury was also told it should consider her expectancy of life of 38.81 years according to the mortality tables, since she was then “a woman 25 years old,” and that, since “a divorce does not become final until 12 months after the interlocutory decree has been granted ... a reeoncilation” within that period of time “will nullify and invalidate such divorce proceedings.” The clear inference to be drawn from the last mentioned instruction is that since a reconciliation might have been consummated if the husband had not been killed in the automobile accident, the jury could disregard the waiver of property rights by the wife in the settlement agreement on the assumption that- it thereby became ineffectual and void. That construction of the contract is in direct conflict with the law as it should be applied to the undisputed facts of this case. The spouses had not become reconciled. They had not resumed marital obligations and relations. The only evidence regarding reconciliation was that the spouses had discussed a possible reeoncilation in the future and that the wife said it was her intention “to eventually grant that reconciliation.” A reconciliation became impossible on account of the husband’s death. It follows that the property settlement agreement remained in full force, and that the jury was erroneously instructed in that regard.

I do not question the right of the wife to maintain the action in her own behalf and as guardian ad litem of the minor, under section 377 of the Code of Civil Procedure. But it was nevertheless necessary for her to prove she had suffered personal detriment on account of her husband’s death for which she had a legal right to recover compensation. (Civ. Code, § 3281.) The jury should have been instructed that her right to recover damages in her personal behalf was limited to the stipulated $25 per month and for all necessary clothing and medical care for the benefit of the minor child.

The written property settlement agreement was a contract which the spouses were authorized by statute to make. (Civ. Code, §§ 158, 159; In re Davis, 106 Cal. 453, 455 [39 P. 756].) That agreement could be canceled, altered or extinguished only by written consent of the parties, or by an executed oral agreement. (Civ. Code, §§ 1698, 1700.) An oral agreement for reconcilation of spouses who are living separate and apart will have the effect of annulling and rescinding a former written property settlement agreement only when the oral consent thereto has been fully executed by an actual resumption of marital relations and legal obligations. (In re Davis, supra; London Guar. & Acc. Co., Ltd. v. Industrial Acc. Com., 181 Cal. 460, 465 [184 P. 864]; 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]; Estate of Boeson, 201 Cal. 36, 42 [255 P. 800]; Brown v. Brown, 170 Cal. 1, 7 [147 P. 1168]; 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]; Estate of Ruiz, 53 Cal.App.2d 363 [127 P.2d 945]; Rickards v. Noonan, 40 Cal.App.2d 266, 271 [104 P.2d 839]; note, 35 A.L.R. 1529.)

The property settlement agreement having been approved, adopted and directed to be enforced by the terms of the interlocutory decree, and the agreement never having been modified or rescinded by reconciliation or otherwise, it remained in full force and conclusively determined the property rights and obligations of the spouses. (London Guar. & Acc. Co. v. Industrial Acc. Com., supra.)

The case of Richards v. Noonan, supra, cited in the majority opinion, and relied upon by the respondents in support of the judgment, is clearly distinguishable from the facts of this case. In that action there was no property settlement agreement, as there was in the present case. The spouses had lived separate and apart prior to the death of the husband which occurred as the result of an automobile accident. There was satisfactory evidence of a complete reconciliation. The wife’s testimony was that ‘ ‘ There was a reconciliation between us. ’ ’ It appeared that he associated with his wife, paid her money and a portion of her debts, and that they engaged in sexual relations. The court specifically found that she was his wife “at the time of his death.” It is true that they had not “yet moved together” 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 & Accident Co. 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:

“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 reconcilation 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 Estate of Dargie, 162 Cal. 51 [121 P. 320], an order for family allowance to the widow of the decedent was affirmed on appeal. The wife had obtained an interlocutory decree of divorce, but the final decree had not been 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.” (Italics added.) 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.

While it is true that the property settlement agreement provided for payment to the wife of $25 per month “for the care of the said minor” together with “necessary clothing and medical care to the said minor child,” I assume that necessary maintenance of the child was a detriment compensated by the jury in its award to the child, pursuant to the instructions which were given to the jury. If the widow was also individually allowed an award for the same purpose, it would be duplicate compensation for the same element, and therefore unwarranted and illegal.

For the reasons that it is impossible to determine what portion of the joint judgment was awarded to the wife individually, and that the instructions with relation to the wife’s damages and the effect of the property settlement agreement are erroneous, misleading and prejudicial, I am convinced the judgment should be reversed.

Appellants’ petition for a hearing by the Supreme Court was denied December 16, 1948. Schauer, J., voted for a hearing.