Benwell v. Dean

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; SIMS
• Citation: Benwell v. Dean, 249 Cal.App.2d 345, 57 Cal.Rptr. 394 (Cal. App. 1967)
• Decision Date: 10 March 1967
• Parties: Mary M. BENWELL, Plaintiff and Respondent, v. William T. DEAN, Defendant, Appellant and Respondent, Virgil Ayen, L. W. Dillon, Lloyd Inslee and Boyd Swensen, individually and as copartners doing business as Ayen Movers, and Pacific Employers Insurance Company, a Corporation, Lien Claimants and Appellants. Civ. 22858.

Page 394

57 Cal.Rptr. 394

249 Cal.App.2d 345

Mary M. BENWELL, Plaintiff and Respondent, v. William T. DEAN, Defendant, Appellant and Respondent Virgil Ayen, L. W. Dillon, Lloyd Inslee and Boyd Swensen, individually and as copartners doing business as Ayen Movers, and Pacific Employers Insurance Company, a Corporation, Lien Claimants and Appellants.

Civ. 22858.

Court of Appeal, First District, Division 1, California.

March 10, 1967.

Rehearing Denied April 4, 1967.

J. Adrian Palmquist, James L. O'Dea, Alameda, for plaintiff benwell.

Berry, Davis, Lewis & McInerney, Oakland, Cyril Viadro, San Francisco (of counsel), for defendant Dean.

Donald J. O'Neill, Sunnyvale, for appellants.

MOLINARI, Presiding Justice.

In this wrongful death action the questions presented on appeal are as follows: (1) whether it was error to reject defendant's offer of proof that deceased, shortly before his death, had told a witness that he (the deceased) intended to leave his wife (the plaintiff), and that he could not stand her behavior; (2) whether the trial court erred in refusing to permit defendant to inquire into plaintiff's new married name and marital status; (3) whether plaintiff failed to prove her damages; (4) whether the trial court erred in permitting plaintiff to call and cross-examine her deceased husband's employer; and (5) whether it was error to bar the workmen's compensation lien of decedent's employers and insurance carrier (hereinafter called lien-claimants). ¹

Evidence of Deceased's Intention to Leave His Wife

In the course of the trial, defendant offered to show, through the testimony of a Mrs. Rossi, former wife of one of deceased's employers, that the deceased, shortly before his death, had asserted to the witness that he was getting ready to leave plaintiff and that he could not stand her behavior. The offer of proof was rejected by the court on the ground that it was 'inadmissible hearsay.'

Defendant urges that the offered testimony was admissible either under the state of mind exception to the hearsay rule or as circumstantial evidence tending to prove that the deceased did not feel toward plaintiff as warmly as she testified that he did. In the instant case, in the course of her case in chief, plaintiff testified as to the warmth of the feelings between her and her husband; ² these feelings were commented upon by her counsel in his argument to the jury; and, finally, instructions were given by the trial court advising the jury that, in determining pecuniary loss, they could consider 'the value of the society, comfort, care, protection * * * which plaintiff has lost by reason of the death * * *,' and that they could also consider 'whether the disposition of the deceased was kindly, affectionate or otherwise * * *.' Since the deceased's feelings towards her were placed in issue by plaintiff, says defendant, he should have been afforded the opportunity of countering and rebutting her testimony that the marriage was a happy one by means of the proffered evidence. The thesis of defendant's argument is that since the feelings between plaintiff and her deceased husband were at issue in the determination of the amount of damages to which plaintiff was entitled, and that since such damages included the elements of loss of society, comfort, care and protection, evidence of the lack of these elements was admissible.

Before proceeding to discuss this contention we note that the statutory and exclusive measure of damages in actions for wrongful death is that embodied in Code of Civil Procedure section 377, which is 'such damages * * * as under all the circumstances * * * may be just.' (Bond v. United Railroads, 159 Cal. 270, 276, 113 P. 366, 48 L.R.A.,N.S., 687; Duclos v. Tashjian, 32 Cal.App.2d 444, 453, 90 P.2d 140.) Damages under the provisions of this section 'are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection' (Stathos v. Lemich, 213 Cal.App.2d 52, 56, 28 Cal.Rptr. 462, 465); as, stated in Cervantes v. Maco Gas Co., 177 Cal.App.2d 246, 2 Cal.Rptr. 75, such damages are 'what the heirs received at the time of the death of the decedent and what the heirs would have received had the decedent lived.' (P. 251, 2 Cal.Rptr. p. 79.) With respect to the loss of comfort, society and protection, this element of pecuniary loss recoverable under section 377 has an actual value which cannot be compensated for by merely nominal damages. (Griott v. Gamblin, 194 Cal.App.2d 577, 579, 15 Cal.Rptr. 228; Duclos v. Tashjian, supra.)

It is well established in this state, moreover, that evidence of the nature of the personal relationship that existed between the decedent and the beneficiaries of a wrongful death action has a bearing on the compensation for loss of society, comfort and protection, and is therefore ordinarily admissible in such an action. (Beeson v. Green Mountain G.M. Co., 57 Cal. 20, 38 (social and domestic relations of parties and their kindly demeanor toward each other); Cook v. Clay Street Hill R.R. Co., 60 Cal. 604, 609 ('happily married life'; decedent was 'kind and attentive' and 'kind and loving'); Carroll v. Central Counties Gas Co., 96 Cal.App. 161, 164, 273 P. 875, 274 P. 594 (attitude of decedent towards beneficiary and that decedent was 'industrious and affectionate'); Kramm v. Stockton Elec. R.R. Co., 22 Cal.App. 737, 757, 136 P. 523 (decedent was 'kind and loving'); 55 Cal.Jur.2d Wrongful Death, § 70, p. 480.) These decisions make it readily apparent that if it is proper for the beneficiary to produce evidence of the attitude and affection on the part of the decedent for the beneficiaries that then defendant should properly be able to rebut or negate such evidence.

Of particular interest to the discussion at hand are the cases of Luis v. Cavin, 88 Cal.App.2d 107, 119, 198 P.2d 563 and Powers v. Sutherland Auto Stage Co., 190 Cal. 487, 489, 491, 213 P. 494.) In Cavin it was held that loss of comfort, society and protection could be an item of damages in a wrongful death action brought by a decedent's widow who before his death had lived separate and apart from him under an interlocutory decree of divorce, where there was evidence that the parties had discussed reconciliation and there was evidence of possible future reconciliation. In Powers, the decedent and his wife had been living separate and apart, although not legally separated or divorced, for over 13 years, the decedent having deserted his wife and abandoned all contact with her and she not knowing of his whereabouts. It was held that the wife could not recover for loss of his society, comfort and protection although she could recover damages on the basis of the pecuniary loss suffered by her legally enforceable right of support.

Adverting to the proffered evidence in the instant case, we note that if it was admissible at all, it was admissible to show deceased's mental state and not to prove that deceased was going to leave plaintiff as a matter of fact or to prove any acts of misconduct on the part of plaintiff. It is established in California that a statement of memory or belief may not be used to prove the fact remembered or believed. (See Estate of Anderson, 185 Cal. 700, pp. 719--720, 198 P. 407; Adkins v. Brett, 184 Cal. 252, 256, 193 P. 251.) ³

The admissibility of statements or declarations indicative of the mental state of the declarant embraces two theories: If the statements do not directly declare a mental or emotional state, but are merely circumstantial evidence thereof, they are not hearsay; but if they are declarations of a mental condition, which directly asserts it, they are hearsay. (See Witkin, Cal.Evidence, 2d ed., § 556, pp. 530--531; VI Wigmore, § 1715; McCormick, Evidence, p. 567; 19 Cal.L.Rev. 245, 248; and see Evid.Code § 1250, Comment.) In the latter instance, evidence of a certain person's declarations at a particular time indicative of his then mental state, even though hearsay, are competent as within an exception to the hearsay rule when the intention, feelings or other mental state of that person at said time, including his bodily feelings, are material to the issues under trial. (Adkins v. Brett, supra, 184 Cal. p. 255, 193 P. 251; Estate of Anderson, supra, 185 Cal. pp. 718--719, 198 P. 407; Whitlow v. Durst, 20 Cal.2d 523, 524, 127 P.2d 530; Watenpaugh v. State Teachers' Retirement, 51 Cal.2d 675, 679--680, 336 P.2d 165; People v. Hamilton, 55 Cal.2d 881, 893--900, 13 Cal.Rptr. 649, 362 P.2d 473; see VI Wigmore, § 1730; Witkin, supra, § 557, p. 531.) ⁴

Since declarations indicative of the declarant's mental state at the very time of their utterance are only competent to show that mental state they are not admissible unless his mental state is material to the issue under investigation. Accordingly, even though such declarations do show the declarant's mental state at the time of their utterance, they are not competent for that purpose unless that purpose is germane to the issue. (Estate of Anderson, supra, 185 Cal. p. 718, 198 P. 407.) In the present case the subject declaration would be admissible under the dual theories above mentioned, provided it was relevant to an issue under trial in the instant case, because it was circumstantial evidence of deceased's feelings toward plaintiff ('he was getting ready to leave plaintiff') and as a direct declaration of his mental state ('he could not stand her behavior'). (See People v. Brust, 47 Cal.2d 776, 785, 306 P.2d 480.)

Defendant relies essentially upon Adkins v. Brett, supra; Whitlow v. Durst, supra, and Loetsch v. New York City Omnibus Corporation, 291 N.Y. 308, 52 N.E.2d 448. In Adkins, a husband brought an action for alienation of his wife's affections. In the course of the trial the plaintiff-husband was permitted to testify as to a conversation with his wife the import of which was...