Wood v. Alves Service Transp., Inc.

• Decision Date: 02 May 1961
• Court: California Court of Appeals Court of Appeals
• Parties: Anna WOOD, Plaintiff and Appellant, v. ALVES SERVICE TRANSPORTATION, INC., a corporation, Bruce Carl Mosegaard, Defendants and Respondents. Civ. 6520.

Page 114

13 Cal.Rptr. 114

191 Cal.App.2d 723

Anna WOOD, Plaintiff and Appellant, v. ALVES SERVICE TRANSPORTATION, INC., a corporation, Bruce Carl Mosegaard, Defendants and Respondents.

Civ. 6520.

District Court of Appeal, Fourth District, California.

May 2, 1961.

Rehearing Denied May 29, 1961.

Hearing Denied June 28, 1961.

Davenport, Mayo & Lawrence, William R. Lawrence, Los Angeles, and Milan Moacanin, Hollywood, for appellant.

Baker, Palmer, Wall & Raymond and Robert L. Raymond, Bakersfield, for respondents.

GRIFFIN, Presiding Justice.

Plaintiff-appellant is the surviving wife of Lloyd Wood, who was killed on August 9, 1958, when a tank-truck and tank-trailer, being operated by him and then parked on the east side of Highway 99 near the intersection of State Highway 33, off of the traveled portion of the highway, was struck by a tractor and two trailer vans then owned by defendant-respondent Alves Service Transportation, Inc. and operated by defendant-respondent Bruce Carl Mosegaard. At the time of said collision, plaintiff's husband was standing in the vicinity of the parked vehicle then and there being operated by him, and as a result of the aforesaid collision his vehicle was propelled into his person, resulting in serious injuries to him which caused his death. Plaintiff sought judgment for $225,000 general damages for loss of her husband and his society, comfort and services and her right to receive support from him, plus special damages. The jury returned a verdict in favor of the plaintiff for $20,256 general damages. She sought a new trial, which was denied. In her brief, she indicates that she is appealing from the part of the judgment which failed to award to her a greater amount of damages than that rendered by the jury. Her points on appeal are limited to that question.

Plaintiff testified she married Lloyd Wood on July 2, 1951 in Germany; that she was age 32 at the time of his death; what after coming to the United States she was employed in a garment factory and was employed up until her husband's death; that her husband was employed as a truck driver and his income for six months in 1956 was $3,945.94, in 1957 it was $6,825.76 and in 1958 it was $4,958.87.

Based on this income, plaintiff's expert witness testified that Mr. Wood's life expectancy was 40.06 years and that his gross income for life, based on the salary table indicated, would have been about $176,298. On cross-examination, it was shown that this figure did not take into consideration his cost of living during that period. From the seven-year period of their married life, they accumulated a house trailer, a 1955 model automobile and a small savings account. No children were born as the issue of the marriage.

The principal contention of appellant is that counsel for respondents was guilty of prejudicial misconduct in relation to his opening statement to the jury in reference to plaintiff's likelihood of being remarried in a short time and that fact should be considered by the jury. She cites Gallo v. Southern Pac. Co., 43 Cal.App.2d 339, 110 P.2d 1062, holding that in an action for wrongful death, the court did not err in sustaining an objection to the question asked on cross-examination of the widow of decedent as to whether she had any plan of contemplating marriage in the near future.

Defendants relied upon Rayner v. Ramirez, 159 Cal.App.2d 372, 383, 324 P.2d 83. The plaintiff there had testified, without objection, to the fact that she had not remarried. No objection was made to the question until the introduction of a marriage certificate proving that she had so remarried, and the mainister who performed the marriage ceremony so testified, without objection. This court held that such question could not be raised for the first time on appeal and that a wide latitude was allowed on cross-examination to determine the facts and the truth of the testimony given on direct examination, and that no prejudicial error resulted. That case is factually distinguishable from the instant case.

With this background, prior to trial, the respective parties asked the court to adjourn into chambers to discuss the question of whether certain evidence that plaintiff had plans for marriage at an early date would be admissible for the purpose of defending against an action where liability was quite apparent and the real defense would be the amount of damages to be awarded. The trial judge examined the authorities and asked for time for further consideration of this point and reserved a ruling on the point. Immediately thereafter, in his opening statement to the jury, counsel for defendant said:

'The evidence will show too, I think, a very strong probability that Mrs. Wood will remarry.'

'Mr. Lawrence: Your Honor, I wish to raise an objection at this point, the law is clear on this question of activities following the date of loss. I refer to the memorandum that I supplied the court and I feel * * *.

'The Court: The jury has been advised before that anything that counsel says to them is not evidence, and it may or may not be that we will admit evidence of that sort, but I don't want the jury to believe that simply because one of the attorneys says there will be evidence that necessarily it will be admitted.

* * *

* * *

'Mr. Lawrence: On the same point, Your Honor, this is speculation on the part of Mr. Raymond. He expects there is a reasonable reason on belief. He isn't talking about evidence that he's going to bring in.

'Mr. Raymond: I am taking about evidence that I will bring in, Your Honor, and will present.

'The Court: I think I've made my ruling on it.

'Mr. Raymond: Thank you, Your Honor. The evidence will not generalize in that regard. I think we'll be able to show you by name; occupation and place the man of probable remarriage as far as Mrs. Wood is concerned, and her evidence if fairly presented here will I think confirm the probability of that remarriage.'

Counsel for plaintiff made no motion to strike this statement or to further admonish the jury to disregard it. See People v Hampton, 47 Cal.2d 239, 302 P.2d 300; Jonte v. Key System, 89 Cal.App.2d 654, 659, 201 P.2d 562.

Thereafter, in chambers, the court and respective counsel again considered the question and the court ruled that defendants could not offer evidence on the issue. A question of instructing the jury further to disregard the statement about remarriage came up and it was fairly agreed that this subject might be further emphasized by a specific instruction, and, accordingly, the standard instruction concerning opening statements would fairly cover the subject. The court there remarked, with some apparent agreement of all of the parties, that, as a practical matter, evidence or no evidence, the jury would probably consider the possibility of remarriage. Counsel for appellant replied, 'I agree with that, Your Honor.' To us this does not appear to be an unreasonable concession.

Thereupon, in the absence of the jury, counsel for defendants made an offer of proof to the effect that he had present in court a man who had observed substantial displays of affection between plaintiff and a mamed man, beginning in July or September of 1959, and by testimony and motion pictures he would show conduct on their part which the jury could only construe as conduct of persons who contemplate marriage. (These acts included shopping together on Saturday afternoons.) We conclude that the trial court's ruling was proper in refusing this proffered evidence, even though it might have been established as true.

In 30 A.L.R. 121, 123, under the subject of 'Remarriage of surviving spouse,' it is said, citing many out-of-state cases:

'By the great weight of authority, in actions to recover damages for the wrongful death of a married person, evidence is inadmissible that the surviving spouse has remarried since the death complained of, and this fact is not to be considered in mitigation of the damages recoverable in behalf of such surviving spouse.'

In a number of cases, this general rule is modified to some extent, as in Preble v. Wabash Railway Co., 243 Ill. 340, 90 N.E. 716, where the widow brought an action for compensation for the pecuniary injuries resulting from the death of a husband, alleging her pregnancy at that time. The court held it proper to show, upon the trial, that the child was born and had died. See also Davis v. Wight, Tex.Civ.App., 218 S.W. 26, where a minor daughter was recovering for death of the father. Subsequent marriage of the daughter was held proper as bearing on damage, at least up to the time of her marriage. See also Lopez v. New Amsterdam Casualty Company, 5 Cir., 261 F.2d 659, and Sipes v. Michigan Cent. R. Co., 231 Mich. 404, 204 N.W. 84, 85, where the court stated:

'The widow was 21 years of age at the time of the trial, and defendant requested the court to instruct the jury to consider, in fixing the period of loss of support, the possibility of remarriage * * * The possibility of so young a person contracting another marriage should have been permitted to temper the thought of celibacy for 39 years.'

From an examination of the authorities, the general rule appears to be that the pecuniary loss to the beneficiary is to be based upon conditions as they existed at the time of the death. 30 A.L.R. 121, supra. In Stephens v. Natchitoches Parish School Board, La.App., 110 So.2d 156, 166, in support of this rule, the court held that:

'* * * the engagement of the plaintiff widow to be remarried was irrelevent,' and declared that 'even if such an engagement should actually result in remarriage, it did not follow that the condition of the plaintiff would be bettered' and the court had 'no hesitancy in holding that the engagement of a spouse, or the actual remarriage, is completely irrelevant to a consideration of the damages to which such spouse is entitled.'

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