Hazelwood v. Hazelwood

• Decision Date: 26 April 1976
• Citation: 129 Cal.Rptr. 384,57 Cal.App.3d 693
• Court: California Court of Appeals Court of Appeals
• Parties: Chad HAZELWOOD, a minor, v. Earl B. HAZELWOOD et al., Plaintiffs and Appellants, v. George W. WHITE et al., Defendants. Civ. 37068.

Page 384

129 Cal.Rptr. 384

57 Cal.App.3d 693

Chad HAZELWOOD, a minor, v. Earl B. HAZELWOOD et al., Plaintiffs and Appellants, v. George W. WHITE et al., Defendants.

Civ. 37068.

Court of Appeal, First District, Division 4, California.

April 26, 1976.

Hearing Denied June 24, 1976.

Gerstl, Gorman & Kleman, Inc., by Hugo N. Gerstl, Monterey, for appellants.

Marootian & Samarco, by James P. Samarco, Fresno, R. W. Levy, Fresno, for respondents.

EMERSON, ^* Associate Justice.

Appellants, claiming to be dependent parents, filed an action for damages for the wrongful death of their son, hereafter referred to as the decedent. As will be seen, the disposition of this appeal depends primarily upon the definition of the term 'dependent parents' as formerly used in section 377 of the Code of Civil Procedure. ¹

The action was consolidated with a similar suit filed by decedent's widow on behalf of herself individually and as guardian ad litem for the minor child of the marriage. Decedent left no other heirs.

A settlement of the actions was offered, and the widow filed a petition for compromise of the child's claim and for distribution of the settlement proceeds to herself and the child only. Appellants filed a counterpetition asking that the proceeds be distributed to them and the child, and that the widow be awarded nothing. The trial court issued an 'order and decree' approving the compromise of the child's claim and distributing the entire settlement proceeds to him, less an amount for attorney's fees and costs. Decedent's parents appeal from the order and decree, which we shall refer to as the judgment. ² , ³ The widow does not appeal.

The right of appellants to maintain their action for wrongful death and, therefore, to share in the settlement proceeds must be founded upon their status as dependent parents. They are not heirs of the decedent. (Prob.Code, § 221; Estate of Jones (1934) 3 Cal.App.2d 395, 397, 39 P.2d 847.) The right to sue for wrongful death is limited to the persons described in section 377. (Steed v. Imperial Airlines (1974) 12 Cal.3d 115, 119, 115 Cal.Rptr. 329, 524 P.2d 801.) The statute formerly limited the right of action to heirs of the decedent and personal representatives of the decedent using on the heirs' behalf. (See Evans v. Shanklin (1936) 16 Cal.App.2d 358, 360--361, 60 P.2d 554.) In 1968, section 377 was amended to permit actions to be brought by dependent parents of the decedent. (Stats.1968, ch. 766, § 1, p. 1488.)

The trial court found, on substantial evidence, that decedent did not, during his lifetime, contribute to the support of appellants; that appellants, at the time of decedent's death, were not disabled, were both gainfully employed and were self-supporting. It concluded that, as a matter of law, appellants were not dependent parents of decedent within the meaning of section 377. Insofar as dependency for support, or what may be termed financial dependency, is concerned, the findings and conclusion are supported by substantial evidence and are binding upon this court. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, 92 Cal.Rptr. 162, 479 P.2d 362.)

Appellants argue that the term 'dependent parents' as used in the statute has a meaning broader in scope than actual financial dependency. They contend that they were made dependent parents by their reliance upon decedent for comfort and affection and for support and pecuniary advantages to which they might be entitled in the future. Cases are cited which indicate that the loss of these benefits is compensable in wrongful death actions brought on behalf of parents As heirs. (Bellandi v. Park Sanitarium Assn. (1931) 214 Cal. 472, 481, 6 P.2d 508; Swails v. General Elec. Co. (1968) 264 Cal.App.2d 82, 86--87, 70 Cal.Rptr. 143; Wheeler v. Brown (1941) 47 Cal.App.2d 239, 243, 117 P.2d 707; Gallo v. Southern Pac. Co. (1941) 43 Cal.App.2d 339, 346, 110 P.2d 1062; Rocca v. Tuolumne County Elec. etc. Co. (1926) 76 Cal.App. 569, 588, 245 P. 468.) But we are not here concerned with the nature or extent of the recovery to which appellants might be entitled. The issue is whether they are entitled to recover at all. An example of this distinction is found in Correia v. Van Camp Sea Food Co. (1952) 113 Cal.App.2d 71, 248 P.2d 81, upon which appellants rely. There the defendants in an action for the wrongful death of a seaman brought under the Jones Act complained that the award of damages was excessive in that there had been no showing that the parents of the decedent were dependent upon him for support. The reviewing court, in the course of justifying its refusal to invalidate the award, stated that the word 'dependent' had a meaning broader in scope than actual dependency. (Id. at p. 83, 248 P.2d 81.) However, the question considered in Correia was merely whether the award of damages to persons entitled to recover was excessive. The court determined that the award was not excessive for the reason that it fairly compensated the decedent's parents for their pecuniary loss. (Id. 113 Cal.App.2d at pp. 83--85, 248 P.2d 81.) Correia, like the other cases relied on by appellants, did not consider the entirely different question whether certain parents were dependent so as to be proper plaintiffs under section 377.

No case has been cited and none has been found in which the statutory term 'dependent parents' has been defined. However, it was stated in Steed v. Imperial Airlines, supra, 12 Cal.3d 115, 115 Cal.Rptr. 329, 524 P.2d 801, that the extension of the right of action to dependent parents cured an injustice recognized in a case decided many years prior to the amendment of the statute. (Id. at p. 121, fn. 4, 115 Cal.Rptr. 329, 524 P.2d 801.) That case was Evans v. Shanklin, supra, 16 Cal.App.2d 358, 60 P.2d 554, in which an elderly and indigent mother who actually relied upon her son for support and who was statutorily entitled to such support was held to be unable to sue for her son's wrongful death on the ground that she did not qualify as an heir. (Id. at pp. 362--363, 60 P.2d 554.) If, as the comment in Steed, supra, suggests, section 377 was changed in order to account for the situation involved in Evans, then the term 'dependent parents' must be read as referring to parents who are actually dependent, at least in part, upon the decedent for support.

Such a reading of the term, moreover, accords with the rules requiring that words used in a statute be given their ordinary meaning unless a different meaning is clearly intended (Gawzner Corp. v. Minier (1975) 46 Cal.App.3d 777, 783, 120 Cal.Rptr. 344) and that statutes be read so as to avoid making some of their words surplusage (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224). Had the Legislature intended to extend the right to sue for wrongful death to all parents, there would have been no need to include the word 'dependent' in section 377.

We hold that the term 'dependent parents' as it was used in Code of Civil Procedure section 377 means parents who, at the time of a child's death, were actually dependent, to some extent, upon the decedent for the necessaries of life.

Appellants next contend that respondents were estopped to resist their claim for a share of the proceeds of the settlement. They assert that the existence of appellants' action and the participation of appellants in settlement negotiations contributed to the achievement of the settlement, that respondents acquiesced in this, and should not be entitled to claim that appellants have no right to share the settlement proceeds.

Appellants rely on Changaris v. Marvel (1964) 231 Cal.App.2d 308, 41 Cal.Rptr. 774. There an action for wrongful death was brought on behalf of five claimants. Four were the surviving adult children of the decedent. The fifth claimed to be the decedent's widow. After a settlement was reached, the children argued that the widow was entitled to no part of the settlement proceeds for the reason that she had not been validly married to the decedent. The attorney who had represented the five claimants in the wrongful death suit brought an interpleader action. The judgment in the latter action ordered distribution of the bulk of the settlement funds to the widow. That judgment was based, and affirmed, on two grounds, one...