Changaris v. Marvel

• Decision Date: 16 December 1964
• Citation: 231 Cal.App.2d 308,41 Cal.Rptr. 774
• Court: California Court of Appeals Court of Appeals
• Parties: James G. CHANGARIS, Plaintiff, v. Charles MARVEL et al., Defendants and Appellants, Alva Marvel, Defendant and Respondent. Civ. 10909.

Page 774

41 Cal.Rptr. 774

231 Cal.App.2d 308

James G. CHANGARIS, Plaintiff, v. Charles MARVEL et al., Defendants and Appellants Alva Marvel, Defendant and Respondent.

Civ. 10909.

District Court of Appeal, Third District, California.

Dec. 16, 1964.

Rehearing Denied Jan. 15, 1965.

Hearing Denied Feb. 10, 1965.

Morgan D. Goldie, Wilmington, for appellants.

Richard E. Crow, Sacramento, for respondent.

VAN DYKE, Justice pro tem.

By this appeal the adult children of the deceased, Jesse J. Marvel, Sr., challenge the court's distribution of the money paid by a defendant tortfeasor in a wrongful death action by way of compromise. James G. Changaris, an attorney, in behalf of five claimants, brought an action against the wrongdoer. The plaintiffs in that action were four surviving adult children of Marvel, Sr., and Alva Marvel, claiming as his widow. After payment of costs of litigation and attorney's fees there remained in the hands of Changaris the sum of $29,317.39 to be distributed among the five plaintiffs. Since they were in dispute Changaris interpleaded the five and was discharged from further activity and responsibility The court in the interpleader action, after trial, rendered the judgment now on appeal.

The children of decedent, all of whom are adults and who for long had been independent of the decedent, sought herein to defeat entirely the claim of Alva to any part of the compromise fund upon the ground that she was neither the legal wife of decedent at the time of his death nor his putative wife. Alva and decedent had known each other since 1943, and Alva testified that she and decedent were married in Tiajuana, Mexico, in September 1947. Appellants challenged the validity of this marriage; indeed asserted that decedent had never been divorced from their mother and that she was living. She did not join in the death action. It is not disputed that decedent and Alva lived together until his death in February 1961, and during that period held themselves out as man and wife. Further, that they pooled their earnings, maintained joint bank accounts, At the trial herein the appellants names, and paid all bills from their joint accounts. At the trial herein the appelants introduced evidence, subject to a motion to strike, which was granted, to the effect the relationship between Alva and decedent was meretricious. Their evidence, if believed, would have supported a finding that no marriage had actually taken place and that Alva's relationship was not that of a putative spouse. The trial court held that the appellants were estopped to deny the relationship because, knowing prior to the filing of the action against the wrongdoer that Alva intended to claim as the deceased's widow, they nevertheless joined in her complaint in the death action, made no objection to the prosecution of that suit in that form, and now seek to exclude her from sharing in the funds obtained through the death action, although their own damages were slight and the fund was mainly produced through the claim of Alva.

It appears that Alva first retained Changaris to press her claim in the death action and that the appellants thereafter, as children of decedent, not only acquiesced in her presence in the case as a party litigant but retained Changaris on their own behalf; and that he represented all parties in negotiating the settlement with the attorneys for the tortfeasor. During those negotiations counsel for the tortfeasor, learning that there was a question as to the right of Alva to claim either as the surviving wife of decedent or as a putative wife, filed a motion for leave to amend their pleadings to raise that issue. They informed Changaris they believed they could defeat the claim of Alva and that, since the damages which appellants could prove were minimal, Changaris ought to settle for something around a nuisance value. Changaris denied the validity of their claimed defense as to Alva and proceeded toward trial of the death action for all plaintiffs. His reply to defense counsel in that action was that he believed in Alva's right to recover and that the jury, at trial, would give an award far above his demands in negotiation merely because of the personal attack being made upon Alva. The upshot of all this was that counsel representing the tortfeasor in the death action agreed to compromise. There was paid to Changaris in settlement of all claims the sum of $45,000. After, and in accordance with the contract between Changaris and the plaintiffs in the death action, there had been deducted the costs and expenses advanced by him and his compensation, there remained the aforesaid sum in his hands.

By the judgment herein appealed from the trial court awarded to Alva the sum of $27,650.64 and distributed the remainder to appellants here.

We think that the trial court was correct in refusing to hear the attack on the status of Alva, not only upon the ground of estoppel but upon another ground, namely, that her status as an heir with a right as surviving wife to share in the fund had to be taken as having been established in the compromise of the death action. In support of this last statement we quote the following from Cross v. Pacific Gas & Electric Co., 60 Cal.2d 690, 692, 36 Cal.Rptr. 321, 322, 388 P.2d 353, 354: 'Although recovery under section 377 [Code Civ.Proc.] is in the form of a 'lump sum,' the amount is determined in accordance with the various heirs' separate interests in the deceased's life and the loss suffered by each by reason of the death, and no recovery can be had by an heir who did not sustain a loss. (Estate of Riccomi, 185 Cal. 458, 461, 197 P. 97, 14 A.L.R. 509.)

'Accordingly, each heir should be regarded as having a personal and separate cause of action.

'* * *

'Section 377 of the Code of Civil Procedure by express words provides that 'The respective rights of the heirs in any award shall be determined by the court.' The quoted sentence clearly shows that the interests of the heirs are...