Cervantes v. Maco Gas Co.

• Decision Date: 20 January 1960
• Citation: 2 Cal.Rptr. 75,177 Cal.App.2d 246
• Parties: Hermlla CERVANTES and Paul Cervantes, Plaintiffs and Appellants, v. MACO GAS CO., a California Corporation, Defendant and Respondent. Civ. 9642.
• Court: California Court of Appeals Court of Appeals

Page 75

2 Cal.Rptr. 75

177 Cal.App.2d 246

Hermlla CERVANTES and Paul Cervantes, Plaintiffs and Appellants, v. MACO GAS CO., a California Corporation, Defendant and Respondent.

Civ. 9642.

District Court of Appeal, Third District, California.

Jan. 20, 1960.

Rehearing Denied Feb. 17, 1960.

Hearing Denied March 16, 1960.

Perkins & Carr, Sacramento, for appellants.

McLaughlin & Russell, Sacramento, for respondent.

SCHOTTKY, Justice.

Plaintiffs, Hermila Cervantes and Paul Cervantes, husband and wife, commenced an action to recover damages for the alleged wrongful death of their adult son, Alex Cervantes, who died as a result of monoxide poisoning. The jury brought in a verdict in favor of the wife, Hermila, but adverse to the husband, Paul. Defendant, Maco Gas Co., made a motion for a new trial which was granted on the ground that the court had committed error in instructing the jury that any contributory negligence of Paul was not to be imputed to Hermila and in refusing to instruct the jury that any contributory negligence on the part of Paul or Hermila would be imputed to the other. Plaintiff Paul's motion for a new trial was denied. Plaintiff Hermila has appealed from the order granting a new trial, and plaintiff Paul has appealed from the judgment denying him relief.

The record shows that Alex Cervantes owned real property at Wilton upon which there were three houses. Alex used what is known as the little house for sleeping quarters. Maco Gas Co. was asked to install a kitchen stove and check a heater in one of the other houses on the property. After completing this work on November 28, 1956, Maco was asked to run a gas line to the little house to connect up a heater. Mr. Veit, Maco's employee, ran a line from the propane tanks to the little house. He connected the line to the heater. A valve was installed inside the house at the point the line entered the house. There was also a valve at the heater. After the line was connected, he performed a soap test to check for leaks at the connection and adjusted the flame. He then turned off the valve to the heater. As Mr. Veit was completing the job Paul Cervantes came in and, according to Veit, asked how the heater should be vented. Veit testified he told Paul Cervantes how to vent the heater, and that he also told him and Mrs. Reynolds, Alex's sister, that the heater had to be vented before it was used. It was understood Paul would vent the heater. The next day Veit returned and again checked the flame on the heater in the little house.

Alex died of monoxide poisoning on November 30, 1956. He was found by his parents. The room of the little house was filled with black smoke which was pouring from the unvented heater. The walls were covered with soot. The flame on the heater was orange in color and burning high.

Appeal of Hermila Cervantes.

The question which we must determine upon the appeal of the wife, Hermila, is whether a recovery by her of judgment for the wrongful death of an adult child is community property. For, if it is community property, then the contributory negligence of Paul is imputed to Hermila and she is not entitled to recover, for as stated in Flores v. Brown, 39 Cal.2d 622, at page 630, 248 P.2d 922, at page 926, it is 'necessary to impute the negligence of one spouse to the other to prevent the negligent spouse from profiting by his own wrong.' In view of the verdict of the jury in favor of Hermila and against Paul, the jury must have determined that Paul was negligent and that his negligence contributed as a proximate cause to the death of Alex.

Sections 162 and 163 of the Civil Code provide that all property of either spouse owned by such spouse before marriage, and 'that acquired afterwards by gift, bequest, devise, or descent, * * * is * * * separate property.' Section 164 provides that all other property acquired by either spouse after marriage is community property. Section 687 of the Civil Code provides that 'Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either.' Section 163.5 of the Civil Code, enacted in 1957, provides that 'All damages, special and general, awarded a married person in a civil action for personal injuries, are the separate property of such married person.'

Section 377 of the Code of Civil Procedure, so far as pertinent here, provides: 'When the death of a person not being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, * * *.'

Appellant Hermila contends that the causes of action by parents for the wrongful death of an adult child and any recoveries therefrom are not community property. She argues that a recovery by her as the mother of the decedent would be her separate property by virtue of the provisions of section 377 of the Code of Civil Procedure, contending that the property, namely, the awarded damages, comes to her as an heir of the decedent Alex. We do not agree with this contention.

It was held in Re Estate of Riccomi, 185 Cal. 458, 197 P. 97, 14 A.L.R. 509, in construing section 377, that damages constitute no part of the estate of a decedent and that the proceeding is not one within the probate jurisdiction of the court; that the distribution of damages recovered must be on the basis of the pecuniary loss to the various 'heirs' rather than upon their rights under succession statutes. The court said at page 462 of 185 Cal., at page 99 of 197 P.: '* * * But, as said in the Redfield Case, supra [Redfield v. Oakland, etc., Co., 110 Cal. 277, 42 P. 822, 1063], 'The recovery is for the injury inflicted upon the plaintiffs personally, and not for injuries inflicted upon her [the deceased]; and the word 'heirs' in the statute is intended to limit the right of recovery to a class of persons who, because of their relations to the deceased, are supposed to be injured by her death.' (Italics are ours.) In other words, the plain design of the statute is to give solely to the members of a certain class the opportunity to recover damages for such pecuniary loss as they had suffered by reason of the death of the decedent, and to recompense, in so far as the law can do so, each of such class who has suffered pecuniary loss.'

While section 377 did give appellants the right to commence an action to recover damages for the death of their adult son, it did not operate to make a recovery by appellant...