O'Callaghan v. Southern Pac. Co.

• Decision Date: 12 April 1962
• Citation: 20 Cal.Rptr. 708,202 Cal.App.2d 364
• Court: California Court of Appeals Court of Appeals
• Parties: Eleanor O'CALLAGHAN, Executrix of the Last Will and Testament of Clyde W. O'Callaghan, Deceased, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 20020.

Page 708

20 Cal.Rptr. 708

202 Cal.App.2d 364

Eleanor O'CALLAGHAN, Executrix of the Last Will and Testament of Clyde W. O'Callaghan, Deceased, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 20020.

District Court of Appeal, First District, Division 2, California.

April 12, 1962.

Nichols, Williams, Morgan & Digardi, Oakland, for appellant.

R. Mitchell S. Boyd, Desmond G. Kelly, Dunne, Dunne & Phelps, San Francisco, for respondent.

SHOEMAKER, Justice.

Plaintiff Eleanor O'Callaghan appeals from the trial court's order permitting a setoff against the judgment in her favor.

The record on appeal consists only of a partial clerk's transcript, including the judgment roll in the main action and all papers, documents and orders filed subsequent to the judgment. On such an appeal, no portion of the oral proceedings may be considered and the court limits its review to those facts set forth in the findings. (Estate of Larson (1949) 92 Cal.App.2d 267, 269, 206 P.2d 852.) It must be conclusively presumed that these findings are adequately supported by the evidence. (Kubon v. Kubon (1958) 51 Cal.2d 229, 232, 331 P.2d 636.)

The record shows that on February 18, 1959, Clyde O'Callaghan filed a complaint under the Federal Employers' Liability Act to recover for injuries sustained during the course of his employment with defendant Southern Pacific Company. ¹ Approximately a year after the commencement of this action, Clyde O'Callaghan died, and on April 14, 1960, his widow, Eleanor O'Callaghan, was appointed executrix of his last will and testament. On April 27, 1960, the trial court ordered her substituted as party plaintiff in place of her deceased husband. She then filed an amended complaint setting forth two counts against the defendant. By the first count plaintiff sought recovery for the personal injuries sustained by the deceased, and by the second count she sought recovery for his wrongful death, alleging that he had taken his own life as a direct and proximate result of his accident. Both counts were brought pursuant to the Federal Employers' Liability Act.

After a trial by jury, verdict and judgment were for defendant in the wrongful death action. In the personal injury action, plaintiff recovered judgment against defendant in the amount of $25,000.

Following the entry of judgment, defendant moved the court for an order permitting it to satisfy the lien of the Railroad Retirement Board asserted against the judgment in the sum of $798, and to setoff against the judgment the sum of $1,250, advances made decedent pursuant to vouchers which provided for a lien against any settlement or judgment growing out of the accident.

On February 27, 1961, the motion was first presented. Further hearing was continued to and the matter was concluded on March 21, 1961. On March 22, 1961, the trial court made and entered its order permitting defendant to satisfy and deduct from the judgment the said sums.

Plaintiff's appeal is from the order 'permitting a setoff of One Thousand Two Hundred Fifty Dollars ($1,250.00) against the judgment in favor of plaintiff * * *' In her opening brief, however, appellant appears to be contending that the trial court's order must be reversed in its entirety. The scope of an appeal cannot be broadened in such a manner. However, even were the question of the allowance of the lien of the Railroad Retirement Board before us, any attack thereon must necessarily fail for we note that the trial court's order sets forth that at the hearing held on February 27, 1961, 'it was stipulated by counsel for plaintiff that defendant Southern Pacific Company might satisfy the lien of the Railroad Retirement Board of the United States of America against the judgment herein and might deduct the amount of said lien from the amount to be paid to plaintiff by Southern Pacific Company in satisfaction of the judgment herein.' We accept this stipulation and the finding based thereon as true, for the appellant may not attack the trial court's finding after electing to appeal solely upon the clerk's transcript. Even if we assume that no reporter was present at the February 27 hearing, appellant could still have sought a review of the oral proceedings by way of an agreed or settled statement. In Steele v. Steele (1955) 132 Cal.App.2d 301, 303-304, 282 P.2d 171, 173, it is said: "It has been uniformly held' * * * 'the court may not adopt findings in conflict with the stipulated facts. * * *" The trial court was not only correct in allowing a setoff as to the Railroad Retirement Board lien, but indeed was under a duty to do so.

Appellant urges four grounds for reversal of the order allowing a setoff of $1,250 for the sums advanced by respondent to the decedent, the first being that the evidence was insufficient to support the trial court's finding that respondent did in fact make advances to the decedent in the amount of $1,250. Again appellant is attempting to argue an evidentiary point without the aid of any record of the oral proceedings. Having elected to supply this court with no settled statement or other record indicating what transpired at the hearing, appellant is bound by the presumption that there was adequate evidentiary support for the trial court's finding.

Appellant's remaining three grounds for reversal appear to raise questions of law which this court may properly resolve by reference to the clerk's transcript alone. (See Watson v. Aced (1957) 156 Cal.App.2d 87, 91, 319 P.2d 83, where the court restated the rule that an appellate court may properly determine from the clerk's transcript whether the judgment of the lower court is supported by its findings.)

Appellant first argues that respondent's failure to file a claim with the decedent's estate barred it from seeking equitable setoff against the judgment. This contention is based on Probate Code, sections 707 and 716, which provide that no holder of a contractual claim against an estate shall maintain an action thereon, unless the claim is first filed with the clerk or presented to the executor or adminstrator of the estate. Although this argument would at first glance appear to be a valid one, it must be noted that the Probate Code sections above cited operate solely to bar claims which are asserted against the assets of a decedent's estate. The rule is well established that a personal representative who brings suit under the Federal Employers' Liability Act to recover for injuries sustained by the decedent is suing not on behalf of the decedent's estate but on behalf of the beneficiaries specifically designated in the federal act. The amount recovered by the personal representative in such an action does not become a part of the decedent's estate nor does it become subject to his general debts or pass to his legatees, if they be other than those persons named in the federal statute. In Frabutt v. New York, Chicago and St. Louis R. Co. (W.D.Penn.1949) 84 F.Supp. 460, 463-464, the court stated: 'It is provided by the Federal Employers' Liability Act * * * that any rights of action given by the Act to a person suffering injury shall survive to his or her personal representative, for the benefit of the surviving widow and husband and children of such employee, but in such cases there shall be only one recovery for...