Gordon v. Reynolds

• Decision Date: 19 December 1960
• Docket Number: No. 19046,19046
• Citation: 187 Cal.App.2d 472,10 Cal.Rptr. 73
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret Y. GORDON and Margaret Y. Gordon, Administratrix of the Estate of Donald B. Gordon, deceased, Plaintiffs and Appellants, v. W. C. REYNOLDS, Bank of America, National Trust & Savings Association, as Executor of the Estate of Robert Donald Duncan, Defendants and Respondents.

Page 73

10 Cal.Rptr. 73

187 Cal.App.2d 472

Margaret Y. GORDON and Margaret Y. Gordon, Administratrix of the Estate of Donald B. Gordon, deceased, Plaintiffs and Appellants, v. W. C. REYNOLDS, Bank of America, National Trust & Savings Association, as Executor of the Estate of Robert Donald Duncan, Defendants and Respondents.

No. 19046.

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

Dec. 19, 1960.

Hearing Denied Feb. 15, 1961.

J. Adrian Palmquist, Oakland, Francis T. Cornish, Berkeley, for appellants.

Kirkbride, Wilson, Harzfeld & Wallace, San Mateo, David Livingston, San Francisco, for respondent Bank of America Nat'l. Trust & Savings Assn. as Executor of the Last Will and Testament of Robert Duncan.

David Livingston, Peter F. Sloss, San Francisco, for respondent W. C. Reynolds.

DUNIWAY, Justice.

Plaintiffs appeal from a judgment which adjudges that the court has no jurisdiction of the subject matter of the first cause of action of their second amended complaint or of the amendment thereto, which adds a third cause of action. We find that the judgment is correct.

Plaintiffs are Margaret Y. Gordon individually and Margaret Y. Gordon as administratrix of the estate of Donald B. Gordon, deceased. In her individual capacity Mrs. Gordon sues for her own personal injuries, in the second cause of action only. That cause of action was not passed upon by the trial court, and the action is still pending between her and the defendants. Her appeal, as an individual, on that cause of action, must therefore be dismissed.

In her capacity as administratrix, she sues for the wrongful death of her husband. Although she is also referred to as a plaintiff in her individual capacity in the first cause of action and in the third (which was added by amendment), these being the causes of action for wrongful death, the sole proper plaintiff is Mrs. Gordon as administratrix. Either the administratrix or the heirs, but not both, may sue, and if the administratrix sues, the heirs may not. Code Civ.Proc. § 377; 55 Cal.Jur.2d 416, § 21. Thus the judgment, which relates solely to those causes of action, finally disposes of the litigation as between the administratrix and the defendants.

The two causes of action that are before us show that Mr. and Mrs. Gordon were riding in an airplane owned by defendant Reynolds and piloted by Duncan, of whose will the defendant bank is executor. The plane was landed in the Pacific Ocean, and Gordon and Mr. and Mrs. Duncan were killed, by drowning, Mrs. Gordon being the sole survivor. Each cause of action charges wilful misconduct. The first alleges that the pilot 'became lost at a location over the Pacific Ocean approximately seven miles southwest of Cape San Martin light, on the State of California coast line; that as a direct and proximate result * * * Duncan * * * violently crash landed said airplane into the waters of the Pacific Ocean * * *' The third alleges that the crash was 'near' Cape San Martin in the County of Monterey, and that plaintiffs do not know whether the death occurred within or outside the coastal waters of California. The answers 'admit the allegations of the first count that the airplane * * * was ditched and lost at a location in the Pacific Ocean approximately seven miles southwest of Cape San Martin Light,' and also plead lack of jurisdiction of the subject matter.

The pre-trial order recites a prior order that the defense of lack of jurisdiction be first tried, and orders trial of that issue before the court. No objection to the order appears, nor was anything done to obtain a modification pursuant to Rule 8.7(b), Rules of the Judicial Council for the Superior Courts. However, plaintiffs' pre-trial statement states that plaintiff demands a jury and estimates that the trial will last 'at least three weeks.' When the trial of the issue of jurisdiction began, counsel for plaintiffs objected on the ground that a jury was demanded. The court followed the pre-trial order. After hearing certain testimony, it held that it had no jurisdiction. It found, 'in accordance with the allegations * * * of the first * * * cause of action * * * and the admissions in the answers of defendants * * * and on the basis of the evidence * * * that * * * [the accident] occurred * * * seven miles distant from Cape San Martin Light at a bearing of 200~ true, i. e., southwest * * * and more than one marine league from the nearest point of the shore line * * *'

Appellant contends:

1. That she should have had a jury trial on the issue of jurisdiction.

2. That even though the accident occurred outside the so-called three mile limit, she can still recover if wrongful acts that proximately caused the death occurred in California.

3. That the federal Death on the High Seas Act does not deprive the court of jurisdiction.

1. The question of jury trial.

The court below, in its finding, recites that no objection was made to the pre-trial orders, and that jury trial of the issue of jurisdiction was waived by both parties. Under Rule 8.8, the pre-trial order controls the subsequent course of the case. Cf. Baird v. Hodson, 161 Cal.App.2d 687, 327 P.2d 215; Dell'Orto v. Dell'Orto, 166 Cal.App.2d 825, 334 P.2d 97; Wiese v. Rainville, 173 Cal.App.2d 496, 508, 343 P.2d 643; Greenberg v. Bank of America, 175 Cal.App.2d 664, 346 P.2d 848; Cal-Neva Lodge, Inc. v. Marx, 178 Cal.App.2d 186, 2 Cal.Rptr. 889; Fitzsimmons v. Jones, 179 Cal.App.2d 5, 3 Cal.Rptr. 373; Security Ins. Co. v. Snyder-Lynch Motors, Inc., 183 Cal.App.2d 574, 7 Cal.Rptr. 28. While none of these cases deals with waiver of jury, they all stand for the proposition that the parties and the court are entitled to rely on the pre-trial order in going to trial. We think that, assuming that appellant had a right to have the issue of jurisdiction tried by a jury, it was incumbent upon her to object at the pretrial and, if the pre-trial order failed to show her objection, to move for a modification. Not having done so, she waived whatever right she had. We need not decide whether the issue was one that she would have had the right to have tried by a jury.

Again, assuming the right to a jury, appellant was not prejudiced, because the evidence establishes, without substantial conflict, that the plane fell into the sea outside the three mile limit; a contrary verdict would be without evidentiary support. There was direct, detailed, and positive testimony of three disinterested witnesses, personnel of a navy vessel near which the plane landed, that the place was well outside the three mile limit. Plaintiff herself in her verified petition for letters of administration, alleged that the place was seven miles off the coast.

As against this evidence, there is only the testimony of plaintiff, which is not substantial evidence (Walters v. Bank of America, ect., Ass'n, 9 Cal.2d 46, 69 P.2d 839, 110 A.L.R. 1259). She testified that the plane hit the water between the shore and the ship, in front of the ship; quite a distance from it, a mile or more. She could see a dark outline 'which I took to be the shore.' Her eyesight is not good, and she did not have her glasses on; there was a ceiling of 100 feet. The plane was 'possibly half again the distance from the shore, as I was from the ship.' It was dark, and raining. She was 'no judge of distance.' This evidence does not rise to the dignity of substantiality. It would not support a finding that the plane was within the 'three mile limit.' Consequently appellant was not prejudiced by the denial of her claimed right to a jury determination. Pacific Western Oil Co. v. Bern Oil Co., 13 Cal.2d 60, 87 P.2d 1045, and cf. Bank of America, etc. v. Oil Well Supply Co., 12 Cal.App.2d 265, 55 P.2d 885.

We therefore need not pass upon the executor's contention that, because it was not shown that the events testified to by appellant occurred after the death of Duncan, the foregoing evidence was not admissible against the executor under Code of Civil Procedure, section 1880, subdivision 3.

2. The questions of jurisdiction.

The action is for wrongful death--a cause of action created by statute (Code Civ.Proc. § 377; Grant v. McAuliffe, 41 Cal.2d 859, 864, 264 P.2d 944, 42 A.L.R.2d 1162). Appellant's counsel concedes that if both the accident and the events leading up to it and being proximate causes of it occurred outside California, Code of Civil Procedure, section 377, would not apply. 'All legislation is prima facie territorial.' Holmes, J. in American Banana Co. v. United Fruit Co., 213 U.S. 347, 357, 29 S.Ct. 511, 513, 53 L.Ed. 826, and see Ryan v. North Alaska Salmon Co., 153 Cal. 438, 95 P. 862.

Counsel's contention is that certain acts which caused the accident, and therefore the death, occurred in California, and that Code of Civil Procedure, section 377, is thereby brought into play. It appears that the parties began their fatal flight at Riverside, and decided, because of bad weather, to go no farther than Los Angeles. However, when they were over Los Angeles, Duncan refused to land, although asked to do so. This is what we will call 'proximate cause No. 1.' He was also asked to land at Santa Barbara, but refused--'proximate cause No. 2.' A similar event occurred over the Hearst field at San Simeon--'proximate cause No. 3.' Thereafter, Duncan almost collided with a lighthouse, climbed to avoid a collision, to about 7,000 feet, made a circling descent to about 100 feet above the sea, circled the navy ship, had Gordon signal to it by flashlight, and ditched. These appellant lumps together as what we will call 'proximate cause No. 4.'

At oral argument, counsel virtually conceded that causes Nos. 1, 2 and 3 can hardly be called 'proximate.' They are events, like Duncan's birth, 'but for which' the accident would not have happened, but are hardly 'proximate causes. Counsel asserts that proximate causation began when the plane first missed the lighthouse and started up. This may be so,...