Halbert v. Berlinger

• Decision Date: 03 August 1954
• Citation: 127 Cal.App.2d 6,273 P.2d 274
• Court: California Court of Appeals Court of Appeals
• Parties: HALBERT et al. v. BERLINGER et al. Civ. 8373.

Page 274

273 P.2d 274

127 Cal.App.2d 6

HALBERT et al. v. BERLINGER et al.

Civ. 8373.

District Court of Appeal, Third District, California.

Aug. 3, 1954.

Rehearing Denied Aug. 31, 1954.

Hearing Denied Sept. 30, 1954.

Peters & Peters, Chico, David Livingston & A. Lawrence Burbank, San Francisco, for appellants.

Alexander, Bacon & Mundhenk, San Francisco, Jack M. McPherson, Chico, for respondents.

SCHOTTKY, Justice.

On September 8, 1949, Henry W. Halbert and his wife, Olive Brown Halbert, were riding in a Beechcraft Bonanza airplane when the plane crashed to the ground during an attempted landing at the Masterson Ranch in Tehama County. The plane was owned by Berlinger Construction Company, a corporation, and was being piloted by Roy Berlinger who was the president of the company. Mrs. Halbert and Mr. Berlinger were killed in the accident, and Mr. Halbert sustained severe personal injuries. Mrs. Halbert is survived by her husband and by two minor children, Pamela and Jay Stephen, who were then three years old and one year old, respectively. Jane Berlinger (now Jane Herman) was the surviving widow of Mr. Berlinger and is the administratrix of his estate.

The minor children, by Henry W. Halbert, their guardian, Henry W. Halbert, as administrator of the Estate of Olive Brown Halbert, deceased, and Henry W. Halbert, individually, filed an action for damages against Jane Berlinger as administratrix of the Estate of Roy Berlinger, deceased, and Berlinger Construction Company, a corporation.

The second amended complaint, upon which the case went to trial, pleaded eight separate causes of action. In the first two causes of action, Mr. Halbert, individually, and the minor children, through their general guardian, Mr. Halbert, seek damages from appellant corporation for the death of Mrs. Halbert, the first cause of action alleging the corporation's negligence and Mrs. Halbert's status as a passenger for a consideration, and the second alleging the corporation's wilful misconduct, with Mrs. Halbert as a guest in the plane. Both causes of action allege commission of the wrongful act by the corporation, acting by and through its employee, Mr. Berlinger. Both also allege, as the basis for damages, that the husband was deprived of the society, services and comfort of his wife, and that the children were deprived of their mother's love, affection, comfort, society, protection, guidance and ability and training in education. The amount of the funeral and burial expenses is also alleged.

In the third and fourth causes of action, Mr. Halbert seeks damages from the corporation for his personal injuries, the third cause of action alleging negligence and passenger status as in the first cause of action, and the fourth alleging wilful misconduct and guest status as in the second. Allegations that the corporation committed the wrongful act are incorporated by references from the previous causes of action, and Mr. Halbert's medical and other expenses, incurred and to be incurred by reason of his disability, are also alleged.

In the fifth and sixth causes of action, Mr. Halbert, individually and as administrator of Mrs. Halbert's estate, and the minor children seek damages from appellant Jane Berlinger as administratrix of Mr. Berlinger's estate, by reason of Mrs. Halbert's death. The fifth cause of action alleges negligence and passenger status as in the first and third causes of action, and the sixth cause of action alleges wilful misconduct and guest status as in the second and fourth causes of action. In both the fifth and sixth causes of action, damages are based on the husband's loss of the services of his wife and the children's loss of their mother's protection, guidance and ability and training in connection with their education and rearing, resulting in pecuniary loss and damage to the husband's property, property rights and estate, and to the earnings, profits, property, property rights and estate of the children. The heirship of the husband and the minor children, as well as Mrs. Halbert's age, health and homemaking abilities, are also alleged. Both causes of action also contain allegations covering the funeral and burial expenses.

In the seventh and eighth causes of action, Mr. Halbert seeks damages from Jane Berlinger, as administratrix, for his personal injuries. These causes of action follow the same pattern as the previous ones the seventh alleging negligence and passenger status, and the eighth alleging wilful misconduct and guest status. However, the wrongful act here (as in the fifth and sixth causes of action) was attributed to Mr. Berlinger and not to the corporation. Allegations covering Mr. Halbert's medical expenses, loss of income, and prospective medical treatment are included. It appears that none of the plaintiffs filed a claim against Berlinger estate in the probate proceedings therein, and the last four causes of action are silent on that point.

At the close of plaintiffs' case during the trial, defendants moved for a judgment of nonsuit as to each cause of action; this motion was denied. At the close of the entire case, defendants moved for a directed verdict as to each cause of action, which motion also was denied. The case was submitted to the jury which returned four separate verdicts, two each for $12,000 in favor of the minor children and Mr. Halbert, individually and as administrator of his deceased wife's estate, and against defendant Jane Berlinger as administratrix, in the one case, and against the corporation, in the other, and two each for $19,000 in favor of Mr. Halbert and against defendant Jane Berlinger, as administratrix, in the one case, and against defendant corporation, in the other. All of the defendants thereupon moved for judgment notwithstanding the verdicts, reserving the right to move for a new trial. Defendants also filed a motion for a new trial and it was stipulated that the motion for judgment notwithstanding the verdict and the motion for a new trial should be heard at the same time. Upon said hearing the motion for judgment notwithstanding the verdict was denied and counsel for defendants dismissed the motion for a new trial. This appeal is by all defendants from the orders denying their motions for judgment notwithstanding the verdict.

As hereinbefore stated the first four causes of action were against the Berlinger Construction Company, and the fifth, sixth, seventh and eighth causes of action were against the administratrix of the estate of Roy Berlinger. In arguing for a reversal of the orders denying their motions for judgment notwithstanding the verdict, appellants made the following major contentions: (1) It was necessary to file a claim against the estate of Berlinger, and none having been filed the judgment should have been rendered in favor of defendant Jane Berlinger, as administratrix; (2) at the time of the accident Berlinger was not acting within the scope of his employment by the Berlinger corporation, and the corporation was not responsible for his conduct; (3) there was no evidence either of wilful misconduct on the part of Berlinger or of negligence which proximately contributed to the accident. We shall discuss these contentions in the order of their statement.

Section 707 of the Probate Code was amended in 1949, and as amended requires the presentation of claims 'for damages for physical injuries or death or injury to property' against estates of decedents. The accident here involved happened on September 8, 1949, the amendment to said section became effective on October 1, 1949, and the instant action was filed on September 5, 1950. The pleadings do not allege that any claim was filed against the estate of Roy Berlinger and there was no evidence of the filing of any claim. In fact it is conceded that no claim was filed, and respondents contend that because the amendment to said section 707 was not in effect on September 8, 1949, the date of the accident, it does not apply to the instant action.

However, the precise question has been decided adversely to respondents' contention in the case of Casey v. Katz, 114 Cal.App.2d 391, 250 P.2d 291. The facts in that case are quite similar to those in the instant case, and we quote from page 392 of 114 Cal.App.2d, page 291 of 250 P.2d, of the well-considered opinion of Mr. Justice Dooling as follows:

'This action is based on the prosecution for battery of plaintiff on the complaint of the decedent in May, 1949, and the cause of action which survived decedent's death on September 21, 1949 is one for 'injury to property.' Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 918, 171 A.L.R. 1379; Moffat v. Smith, 33 Cal.2d 905, 206 P.2d 353. Since Prob.Code, sec. 707 as amended requires the presentation of a claim for 'injury to property' the cause of action in this case falls squarely within its terms. The date on which the original complaint was filed does not appear in the transcript but since the appointment of defendant as administrator is alleged to have occurred on October 19, 1949 the original complaint must have been filed after the effective date of the amendment to Prob.Code, sec. 707 which was October 1, 1949.

'The 1949 amendment to Prob.Code, sec. 707 is not to be given retroactive effect so as to apply to actions which had been commenced before it became operative, National Auto[mobile] & Cas[ualty] Ins. Co. v. Ainge, supra, 34 Cal.2d at page 810, 215 P.2d 13, but since it affects procedure only and not substantive rights it is properly applicable to all actions against representatives of decedent's estates commenced after its effective date. No litigant has any vested rights in mere matters of procedure, San Bernardino County v. Industrial Acc[ident] Comm., 217 Cal. 618, 628 et seq., 20 P.2d 673; Arques v. National Superior Co., 67 Cal.App.2d 763, 778, 155 P.2d 643; City of Los Angeles v. Oliver, 102 Cal.App. 299, 315-316, 283 P. 298, so long as an adequate remedy remains....