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District Court of Appeal, Third District, California.


Civ. 4827.

Decided: March 21, 1934

Irving D. Gibson, of Sacramento, for appellants. Ralph H. Lewis and George E. McCutchen, both of Sacramento, for respondent.

This cause comes to us upon an appeal by the defendants from a judgment awarding the plaintiff damages for and on account of the death of her minor son, Frank Stoneburner, while riding as a guest in an automobile driven by the defendant George Theodoratos, also a minor. The verdict against the other defendants, the parents of George Theodoratos, is based upon the fact of their having signed and filed with the division of motor vehicles of the state of California an application for the issuance of an operator's license to operate automobiles on the state highways of the state of California by the said George Theodoratos.

The facts disclosed by the record are substantially as follows: On the 18th of June, 1930, at about the hour of 9:30 p. m., a roadster belonging to the defendant George Theodoratos, and found by the jury to have been then and there operated by him while traveling on the Garden highway near the intersection of said highway with what is known as and called the Power road, left the improved highway and overturned upon a levee some 14 1/2 feet in height, resulting in the death of Frank Stoneburner, who was then and there riding with the defendant George Theodoratos. Frank Stoneburner was a minor of the age of about 17 years. The Garden highway parallels the east bank of the Sacramento river, and the scene of the accident is about 11 miles northwest of the city of Sacramento. The boys were en route to a ranch where they were employed, situate on the Power road some miles distant from the intersection of the Power road and the Garden highway. In going to the place of their employment, the boys would ordinarily travel on the Garden highway to the point where the Power road leads off the right, which road they would follow to their destination. The two roads form what may be called a “Y.” In driving out on the highway on the evening mentioned, it appears that the automobile, instead of properly turning to the right and passing on over the Power road, failed to turn at the intersection of the two roads and went directly forward, passing over the levee between the Garden highway and the Power road. The testimony also shows that, at the point of the intersection of the two roads, the Garden highway turns slightly to the left. The car went over the levee, which we have stated was 14 1/2 feet in height, traveled a distance of some 75 feet, or more, knocked down several posts of a wire fence, and turned over on its top at the base of the levee. Frank Stoneburner was killed.

The record shows that Frank Stoneburner was the illegitimate child of Rose Stoneburner, having borne that name after the marriage of his mother to a man by the name of Stoneburner. The father of Frank Stoneburner was a man by the name of Robert Friscia.

The complaint alleges that Robert Friscia deserted a family alleged to have consisted of plaintiff and a minor child. The record, however, without conflict, shows that Robert Friscia was never married to the plaintiff; that the plaintiff and Robert Friscia never established a home, and never resided together after the birth of the minor known as Frank Stoneburner.

This action is based upon section 376 of the Code of Civil Procedure, together with certain sections of the Probate Code relative to the right of inheritance. The complaint alleges that the defendant George Theodoratos was operating the automobile at the time of the accident in a grossly negligent manner. The first point made by the appellant that under the act of the Legislature of 1931 (St. 1931, p. 1693), repealing that portion of section 141 3/4 of the California Vehicle Act (St. 1923, p. 517 as added by St. 1929, p. 1580), allowing recovery for gross negligence, took away the right of action, if any existed, in favor of the plaintiff in this case.

Some twenty–odd pages of the appellants' opening brief is devoted to a discussion of the effect of the change made by the Legislature in section 141 3/4 of the California Vehicle Act, but following the decision of the Supreme Court in the case of Stotts v. Blickle, 30 P.(2d) 392, decided February 28, 1934, it must be held that the act of the Legislature in 1931, referred to, did not affect the right of the plaintiff in this action, and does not now constitute any bar to a recovery herein, if otherwise the plaintiff is shown to be entitled to a judgment.

For the first time in this state, so far as we have been able to ascertain, the question is presented as to whether the mother of an illegitimate child is entitled to recover damages against one who has wrongfully caused his death. Section 376, Code of Civil Procedure, so far as applicable here, reads: “A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child,” etc. The record shows that there was never the establishment of any family by Robert Friscia and the plaintiff in the usually accepted meaning of that word. It further shows that Robert Friscia never lived with the plaintiff as her husband, never supported her, and never in any way contributed to the support of the minor known as Frank Stoneburner. Under these circumstances the appellants contend that there never having been any family relationship, there could be no desertion on the part of Robert Friscia, and therefore a requisite basis is not established by the plaintiff upon which to found her right for instituting this action.

The testimony in the record is to the effect that Robert Friscia has not been heard of, or from, for some five or six years. In 18 C. J. p. 969, we find two definitions of the word “desertion.” The first is in the following words: “In legal phraseology the word is usually used to denote a wilful abandonment of an employment or duty in violation of a legal or moral obligation.” The second part of the definition reads: “The act by which a man quits the society of his wife, children, or either of them, and renounces his duties toward them.”

There is no question but that Robert Friscia willfully abandoned the duty or moral obligation of supporting his minor child, and, under the law as it now stands, he has failed to comply with what the courts would declare to be a legal duty, upon proper proceedings being had therefor. That he has not renounced and abandoned a family relationship must be conceded. Does this fact deprive the mother of the illegitimate child of a right of action? Under the rigorous doctrine of the common law enunciating a principle contrary to natural right, an illegitimate child had in law neither father nor mother. Feeling bound by the decisions based upon the common law, many courts have held that no recovery could be had against one who wrongfully caused the death of an illegitimate child. Likewise, under the common law, no right of inheritance existed in an illegitimate child. In this state the Legislature has modified the harsh terms of the common law, and sections 255 and 256 of the Probate Code fix the right of inheritance of an illegitimate child from its mother and also the right of inheritance on the part of the mother in and to the estate of her illegitimate child.

The evident intent of the Legislature in adopting section 376, supra, was to provide that one having the right of inheritance to the estate of a minor child should prosecute an action against any one wrongfully causing his death. That right of inheritance coupled with it the right to control the proceeds of any judgment that might be rendered in such action.

In the first instance, the father being lawfully entitled to the custody and control of the community property, was named as the one to begin the action. Secondly, where that right of control had been abandoned, or did not exist, the mother was permitted to maintain the action. Applying this doctrine to the present case, the mother, under the provisions of the Probate Code, is the one entitled to the proceeds of any judgment that should be obtained against any person wrongfully causing the death of the minor. The mother in the instant case has had personal custody, control, supervision, and care of the minor from his birth, making sole provision for him. This places her, we think, in the position of the one within the intent and contemplation of the Legislature when enacting section 376, supra.

In 17 C. J. pp. 1219 and 1220, treating on the subject of illegitimates, it is first stated that statutory rights of action given kindred for injuries done another do not embrace illegitimate kindred without express mention (citing cases upholding the rule of the common law to which we have heretofore referred). After stating the conditions under which no right of action exists, the textwriter points out the circumstances upon which a right of action may be based, to wit: “But where there are statutes substantially legitimizing bastards as to the mother, or conferring on them the right to inherit or transmit inheritance from or through the mother, a mother may recover for the death of her bastard child, and such child may recover from its mother under the designation of parent, child, or next of kin. * * * But such a statute does not affect the situation as between the child and its father, and neither can recover for the death of the other.”

In this state, as we have stated, the right of inheritance exists between a mother and her illegitimate child. The father is excluded from such right of inheritance. The mother, following the doctrine just stated in the text, is included within the designation of section 376, supra, as the one entitled to maintain an action for the wrongful death of her illegitimate minor child.

While the precise question involved here has not been decided by any of the appellate courts of this state, the Supreme Court of Washington, in the case of Goldmyer v. Van Bibber, 130 Wash. 8, 225 P. 821, 822, has ruled that a section of the Code in that state almost identical with ours gives the right of action to a mother under the circumstances presented in this case. In the Washington case the Code section under consideration is set forth in these words: “A father, or in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.” Rem. Comp. Stat. § 184. It is likewise pointed out in that case that the laws of Washington make the common law, so far as not inconsistent with the constitutional laws of the United States, and of the state of Washington, etc., a ruling decision. The case then proceeds to set forth the different provisions of the statutes of the state of Washington to the effect that the mother is given the right of inheritance to the estate of her illegitimate child, and an illegitimate child is given the right of inheritance to the estate of its mother.

The opinion in the Washington case sets forth an excerpt from the case of Hadley v. City of Tallahassee, 67 Fla. 436, 65 So. 545, Ann. Cas. 1916C, 719, as follows: “In the broad language of the statute itself, it was to furnish a remedy for the death of ‘any minor child’ by the wrongful act, negligence, or carelessness of another. Could it have been the intention of our lawmaking power in the enactment of this law to exclude from its remedial provisions the unfortunate illegitimate for whose misfortune of birth he has no sort of personal responsibility, thereby making him a double outcast, with no right to the protection of the law for his life, leaving him the unprotected target for the willful, negligent, and careless on every hand? We are not inclined to give the statute such a construction; but our better judgment leads us to hold, with those courts, that in the construction of statutes similar in all material respects to ours, have held that the mother of an illegitimate minor child, and the mother alone, has the right to sue for and recover damages for the death of such child by the wrongful act, negligence, carelessness, or default of another.” The court then proceeds to cite a number of cases having to do with the succession to the estates of illegitimates, and the construction of statutes giving a right of action for damages, etc. Nearly all of these cases, however, which in principle support the case of Goldmyer v. Van Bibber, are based upon statutes giving the right of action to next of kin, etc., and are not exactly upon all fours with the circumstances presented in the case now before us.

The language of the Supreme Court of Washington further appeals to us as stating the correct rule, to wit: “It is contended by respondent that the words of the statute, ‘a father, or in case of the death or desertion of his family, the mother may maintain an action,’ do not permit the mother to maintain an action until after there is a recognized father and his death or desertion of the family occur. Under the theory of counsel, if the father were to recognize in writing his illegitimate son, and his death occur, or if he should desert his family, the mother then would have the right to institute this action, it certainly cannot be the law that the mother's right is defeated because of the failure of the father to perform his duty in the recognition of his child.”

In the case of Hadley v. City of Tallahassee, supra, the statute giving the right of inheritance is found in the opinion as follows: “Bastards shall be capable of inheriting or transmitting inheritance on the part of their mother in like manner as if they had been lawfully begotten of such mother.” In that case the mother was allowed to maintain an action for the wrongful death of her illegitimate child. As reported in Ann. Cas. 1916C, 719, the opinion of the court is supported by a number of cases cited in the annotations beginning on page 720 of the same volume.

We do not need to enter into a discussion of the common law which held that an illegitimate child was nobody's child, for that harsh rule no longer prevails in this state. The natural law of right has been incorporated into our Codes by the acts of the Legislature, and the relationship between the mother and the child under such circumstances is fixed so far as the right of inheritance is concerned, as though legitimacy prevailed. In this we think not only the natural right has been recognized, but the morality of the condition far better subserved. Both the mother's duty to support and the mother's right to maintain an action for the minor's protection is recognized.

We therefore hold that the mother of an illegitimate child has a right of action under the provisions of section 376, supra, and the existence of a putative father is not necessary to the maintenance of such an action, and that the right of action in the mother does not depend upon the putative father having first established a family relationship, followed by abandonment and desertion.

Appellants further contend that there is no substantial evidence showing that the defendant George Theodoratos was driving the car, and likewise no substantial evidence of any gross negligence.

The defendant George Theodoratos testified that, after leaving the city of Sacramento and traveling about five miles, he became sick and asked Frank Stoneburner to take the wheel. As against this statement the record shows the following: A witness by the name of Burhl Scruggs testified that the boys were at his home on the evening of the accident, and left at about 9 p. m. in a Chrysler roadster belonging to George Theodoratos; that George was driving at the time. Mrs. Stoneburner, the mother of Frank Stoneburner, testified that Frank had lived in her household his entire life; that she had exercised control over him during that time; that she had never seen him drive an automobile, nor had she ever seen him try to drive one. After the accident, George Theodoratos went to the home of Mr. and Mrs. Stahl and asked if they had a car, stating that he and his partner had had an accident and that his partner was badly hurt. No mention was made by George at the time as to how the accident occurred. Mr. Stahl and George went to the scene of the accident, after which Mr. Stahl returned to his home to telephone to the coroner. On the second trip Mrs. Stahl accompanied her husband to the scene of the wrecked automobile. They remained there some time, the witness Mrs. Stahl could not state just how long, but during the time they were waiting for the arrival of the coroner Mrs. Stahl and George sat in the Stahl automobile. George stated to her that he was sitting in the rumble seat of the roadster wrapped in a blanket preceding the accident. Later he stated he was sitting in the front seat beside Frank Stoneburner. While they were sitting in the automobile, as just stated, George Theodoratos said to Mrs. Stahl: “Well, there is my last car; I will never drive another one; that is two I have wrecked.”

Mrs. Stahl also testified that she detected the odor of liquor on the breath of George; that the odor smelled like sour wine, and it was her opinion that George was intoxicated. Mr. Stahl testified that George stated to him he did not know how it happened; that he was riding in the rumble seat; suddenly woke up, and was traveling through the air.

Upon the witness stand the defendant George Theodoratos denied that he had said to either of the Stahls that he was riding in the rumble seat at the time of the accident. The testimony also shows that after the accident George Theodoratos displayed no sign of sickness. The only testimony in the record as to speed is that for the first five miles the automobile was propelled at a speed of about thirty miles an hour. At the same speed it would have taken about ten minutes to cover the distance between where George Theodoratos stated that he became sick and the place where the car was wrecked.

The deceased died from an injury to the right lobe of the liver. The testimony shows that the automobile collided with a fence which was along the right–hand side of the car, traveling about 75 feet after it left the highway, knocking down several posts and pulling the wires constituting the structure of the fence with it. It does not appear in the record that the posts referred to were set in solid ground and may possibly have been easily dislodged. As we have stated, at the intersection of the two roads the Garden highway bears slightly to the left; the Power road turns to the right, down the levee and on over comparatively level country. For a short distance after the Power road diverges from the Garden highway, the descent down the levee is quite precipitous, and we think the record is sufficient to justify the jury in concluding that it would be hazardous for an automobile driver to attempt to negotiate that part of the Power road at a speed of thirty miles per hour.

Mr. Stahl also testified that he detected the odor of sour wine on the breath of George Theodoratos, but was of the opinion that he was not intoxicated. The testimony shows also that Frank Stoneburner received several cuts and bruises, while the defendant George Theodoratos escaped uninjured. The testimony thus referred to would justify the jury in coming to the conclusion that Frank Stoneburner was riding on the right–hand side of the car, and received the injuries from which he died by coming in contact with the fence with which the car collided, and which we have stated was on the right–hand side of the automobile.

It is true that the circumstances relied upon to show that George Theodoratos was driving the automobile are circumstantial, and are contradicted by the testimony of the defendant George Theodoratos. However, in view of these contradicted statements, the jury taking such matters into consideration, and hearing him testify, might readily have come to the conclusion that his testimony was not worthy of credence.

There is sufficient in the record also to indicate that the defendant George Theodoratos was familiar with the highway and consequently had knowledge of the fact that, in order to safely turn from the Garden highway down the levee along the Power road, greater caution should be exercised than when moving along other portions of the highway leading to the point of intersection of the highways where the accident took place. Thirty miles an hour a few miles from the point where the two roads diverge could of course not be called reckless driving. Perhaps a speed much greater than that would not be considered excessive.

Just as stated in the case of Kastel v. Stieber, 215 Cal. 37, 8 P.(2d) 474, it must likewise be borne in mind that an automobile accident on the open highway is entirely different from an accident occurring within city limits, because of the difference in the two hazards, and that occurring on the open highway might reasonably be held only negligence. Applying this language to the instant case, had the automobile overturned at some point other than at the divergence of the two roads, the jury might reasonably conclude that no negligence had been established, but, in view of what we have said, the conditions are substantially changed. At the point of intersection, the driver intending to turn off the levee and down the Power road would be under obligations to exercise care commensurate with the hazards attending the course about to be taken. We agree with the appellants that the automobile left the Garden highway at an obviously dangerous intersection, and from the distance that the automobile proceeded after it left the Garden highway, we likewise think that the jury was warranted in concluding that the car before reaching the point of intersection, had been driven at an excessively high rate of speed under the conditions then and there existing, and that little or no care was exercised by the driver of the car either for his own safety, or for the safety of his guest.

As said in Malone v. Clemow, 111 Cal. App. 13, 295 P. 70, the question of negligence is a question for the jury, and likewise, in substance, that, when liability attaches for negligence, it is for the jury to determine whether the negligence should or should not be classed as gross.

Both in the case of Malone v. Clemow and Kastel v. Stieber, supra, the question of what constitutes gross negligence is fully considered. Likewise, in the opinions in both of those cases, where the speed of the car is relied upon as showing gross negligence under the conditions presented in the respective cases, the authorities are carefully collected and cited, and it would only unnecessarily extend this opinion to restate what is there said. The questions which we have been considering were questions to be decided by the jury, and we think the record discloses sufficient testimony to support the conclusions at which the jury arrived.

The motion of the appellants for a directed verdict, and also for judgment in their favor, notwithstanding the verdict, were properly denied.

The judgment is affirmed.

PLUMMER, Justice.

We concur: PULLEN, P. J.; R. L. THOMPSON, J.