Burge v. City and County of San Francisco

• Decision Date: 20 October 1953
• Citation: 41 Cal.2d 608,262 P.2d 6
• Court: California Supreme Court
• Parties: BURGE v. CITY AND COUNTY OF SAN FRANCISCO. S. F. 18876.

Page 6

262 P.2d 6

41 Cal.2d 608

BURGE v. CITY AND COUNTY OF SAN FRANCISCO.

S. F. 18876.

Supreme Court of California, In Bank.

Oct. 20, 1953.

John F. O'Sullivan, San Francisco, Millington, Dell'Ergo, Weeks & Morrissey, Redwood City, for appellant.

Dion R. Holm, City Atty., and Clayton W. Horn, Deputy City Atty., San Francisco, for respondent.

TRAYNOR, Justice.

Plaintiff Lyndle E. Burge, a minor, by his father as guardian ad litem, brought this action against defendant City and County of San Francisco to recover damages for personal injuries suffered by him while he was a passenger on a street-rail-way car operated by defendant. Defendant filed an answer pleading as a special defense that plaintiff's claim had previously been compromised by his mother in a proceeding under section 1431 of the Probate Code. The issue so raised was tried separately pursuant to section 597 of the Code of Civil Procedure. The court concluded that the order approving the compromise was not subject to collateral attack and entered judgment in favor of defendant. Plaintiff appeals. He concedes that the attack is collateral but contends that the court had no jurisdiction to approve the compromise on the grounds that the petition for approval of the compromise and the order approving it were fatally defective in failing to recite jurisdictional facts and that even if these facts could be proved in the present proceeding the record therein discloses that his mother was without authority to compromise his claim. We have concluded that this contention cannot be sustained and that the judgment must therefore be affirmed.

Plaintiff was fourteen years old at the time of the accident. His father and mother had previously been divorced. The interlocutory decree provided that 'plaintiff (father) and defendant (mother) have joint custody and control of the said minor children, with personal custody in the defendant, and the plaintiff has the right and privilege to visit said minor children and take them out at all reasonable times.' Plaintiff was one of the minor children mentioned in the decree and lived with his mother after the divorce.

All negotiations leading to the compromise were conducted between plaintiff's mother and defendant. Plaintiff's father knew that the accident had occurred and that a claim had been filed, but he did not participate in the compromise proceedings or become aware of the compromise until after it had been made. Plaintiff's mother agreed to release his claim against defendant upon the payment of $500. She filed with the superior court a verified petition seeking approval of the compromise, and it was approved. Defendant paid the $500 and plaintiff's mother executed a release. The present action was brought before plaintiff reached majority.

The verified petition ¹ and the order approving the compromise ² are set forth in the footnotes. Plaintiff contends at the outset that the court failed to approve the compromise, on the grounds that the order recites that it approved a 'disputed claim for minor that Iva Burge has against' defendant and that such a claim is not the claim of plaintiff against defendant. There is nothing to show that there was any need for a judicial proceeding to approve a compromise of any claim of her own that plaintiff's mother may have had against defendant. The proceeding was entitled 'Application of Iva Burge for an order approving the compromise of disputed claim entered by a minor, Lyndle Burge.' The verified petition recited that it was the compromise of the minor's claim for which approval was sought, and the order recited that it was upon the reading and filing of that petition that it appeared to the court that the compromise offer was reasonable. Although the order made a slip-shod description of the claim that was being compromised, when it is read with the petition, there can be no doubt that the court approved a compromise of plaintiff's claim against defendant.

It is plaintiff's principal contention that the court lacked jurisdiction to compromise his claim. Ordinarily when an order or a judgment of a court of general jurisdiction is collaterally attacked, the only evidence that may be considered in determining whether the order or judgment is void is the record in the proceeding in which it was entered. If the record is silent as to the existence of a jurisdictional fact, that fact will be presumed. In re Guardianship of Hall, 31 Cal.2d 157, 164, 187 P.2d 396; Wells Fargo & Co. v. City and County of San Francisco, 25 Cal.2d 37, 40, 152 P.2d 625; cf. Thompson v. Cook, 20 Cal.2d 564, 569, 573, 127 P.2d 909. It has been held, however, that if a proceeding is wholly statutory and unknown to the common law, the court, even though ordinarily one of general jurisdiction, is a court of special jurisdiction for that proceeding, and if jurisdictional facts do not appear of record in such a proceeding, there is no presumption of regularity. In re Estate of Sharon, 179 Cal. 447, 457-458, 177 P. 283; 49 C.J.S., Judgments, § 425, p. 840; cf. In re Estate of Kay, 30 Cal.2d 215, 220-221, 181 P.2d 1. If the presumption is not applicable, however, failure of the record in such a proceeding to recite a jurisdictional fact 'does not make the judgment void, for extrinsic evidence is admissible to prove such fact, except where some statute makes the record the exclusive mode of proof.' Estate of Sharon, supra, 179 Cal. at page 458, 177 P. at page 288.

It is the general rule that without statutory authority a parent, as such, cannot compromise or release his child's cause of action. See, 103 A.L.R. 500; 39 Am.Jur. 629. It has been held, however, that proceedings under section 1431 are entitled to the presumption of regularity. Rico v. Nasser Bros. Realty Co., 58 Cal.App.2d 878, 882, 137 P.2d 861. Plaintiff, relying on the Sharon case, supra, contends that the Rico case was erroneously decided. Defendant, on the other hand, contends that the Hall and Wells Fargo cases, supra, are controlling. It is unnecessary, however, to resolve these contentions if the jurisdictional facts are established by the extrinsic evidence.

Under section 1431, to establish the right of the mother to compromise a minor's disputed claim, it must be shown, if the father is not dead, that (1) that father and mother are living separate or apart; (2) the mother has the care or custody of the minor; (3) the compromise has the approval of the superior court of the county where the minor resides; and that (4) a verified petition in writing seeking approval of the compromise has been filed with such court.

Plaintiff contends that a hearing on the petition is also required. Plaintiff and his mother testified in the present proceeding that neither was present in court when the order approving the compromise was made and that no testimony was taken relating to the extent of his injuries or the fairness of the compromise. The trial court granted defendant's motion to strike this testimony. No error appears. Althouth it would ordinarily be better practice ³ to hold a hearing and take testimony, the statute does not require it. Rico v. Nasser Bros. Realty Co., supra, 58 Cal.App.2d 878, 881, 137 P.2d 861. Plaintiff relies on Berry v. Chaplin, 74 Cal.App.2d 652, 169 P.2d 442, for a contrary rule. There, however, the proceeding was under section 196a of the Civil Code. The court was careful to point out that even if section 1431 were deemed to apply to actions by a child under section 196a, see, 2 Armstrong, California Family Law, p. 1084, no attempt had been made to compromise the child's claim thereunder, since the parent had never filed a verified claim for approval of the compromise as required by section 1431. 74 Cal.App.2d at page 660, 169 P.2d 442. Insofar as the court intimated that a hearing would be necessary had the proceeding been under section 1431, the statement was unnecessary to the decision in the case and is contrary to Rico v. Nasser Bros. Realty Co., supra.

The verified petition and the order approving the compromise disclose that requirements (3) and (4) above were met, but do not disclose that (1) the father and mother were living separate or apart or that (2) the mother had the care or custody of plaintiff. Extrinsic evidence, however, established that the father and mother were divorced and were living apart at the time of the compromise. The controlling question that remains, therefore, is whether it was also proved that the mother then had the 'care or custody' of plaintiff. To answer that question we must first determine what the Legislature meant by the terms 'care or custody'.

Until 1939, section 1431 of the Probate Code provided that a disputed claim of a minor could be compromised by his mother only if 'his father is dead or has deserted or abandoned him'. It was held that under this wording of the section the mother could not compromise a claim when the parents were divorced, even though the mother had been awarded custody of the minor. In re Parrino, 1937, 24 Cal.App.2d 128, 74 P.2d 549. The decision in the Parrino case prompted the Legislature in 1939 to re-examine section 1431 of the Probate Code. It amended the section to provide that a claim of a minor against a third person may be compromised by 'his father, or if his father is dead or the parents of said minor are living separate or apart and his mother than has care or custody of said minor then his mother'. ⁴ The amendment not only met the situation of the Parrino case but extended the mother's authority in other respects. The Parrino case problem could have been met by simply adding to the old phrase the words 'or for other reasons ⁵ the mother has custody of him.' Instead, the Legislature substituted a complete new phrase. The broad language of the new phrase covers not only a case of desertion or abandonment but any case where the father and mother are living separate or apart, ⁶ whether the reason therefor be desertion,...