GONZALES v. PACIFIC GREYHOUND LINES (1949)

This is an action for damages for the wrongful death of Ralph Daniel Gonzales. It was originally commenced by Jeraldine Gonzales, as surviving widow, and Kenneth David Gonzales, a minor, claiming to be the son of the decedent. William Gonzales, admittedly the son of the decedent by a previous marriage, was permitted to intervene in the action. The decedent was killed on February 11, 1946, when his taxicab crashed into a Greyhound has that had skidded out of control and was blocking the highway a short distance above a sharp turn around which the decedent, coming from the opposite direction, traveled to the point of impact.

The action has been twice tried. On the first trial, which was before the court without a jury, the defendants stipulated as to liability for the accident, leaving for determination only the issues of heirship and the amount of damages. By the judgment entered at the conclusion of that trial, the widow was awarded funeral expenses and William Gonzales recovered the sum of $1,800, but Kenneth David Gonzales was allowed nothing, the court finding that he was not the child of the decedent. Plaintiff Kenneth David Gonzales thereupon moved for a new trial, and it was granted upon the court's statement that ‘the evidence (was) insufficient to justify’ its finding in negation of plaintiff's paternity claim since section 195 of the Civil Code provides that ‘the presumption of legitimacy of children born in wedlock can only be disputed by the husband or wife or descendant of one or both of them and the Pacific Greyhound Lines is not in that class.’

The second trial, which was confined solely to the rights of plaintiff Kenneth David Gonzales, was had before a jury. The trial court, over plaintiff's objection, permitted defendants to introduce evidence in challenge of his legitimacy, and it refused plaintiff's offer of defendants' stipulation on the first trial in admission of their liability for the accident. The jury returned a verdict in favor of defendants. From the judgment accordingly entered, plaintiff appeals, contending that the said two major rulings of the trial court were prejudicially erroneous. His position is well taken on both points in the light of the record and the law applicable thereto.

Plaintiff presented evidence which entitled him to claim the presumptions of legitimacy as controlling in his favor. Thus it was indisputably established that Jeraldine Gonzales and the decedent were married on December 11, 1942; that plaintiff was born on August 2, 1943; that the decedent was not impotent; and that the decedent and Jeraldine Gonzales had lived together as husband and wife from the date of their marriage up to several months after the birth of plaintiff. Accordingly, it becomes immaterial whether the presumption of plaintiff's legitimacy be considered conclusive, Code Civ.Proc., sec. 1962, subd. 5, or disputable, Code Civ.Proc., sec. 1963, subd. 31; see, also, Civ.Code, sec. 193, for defendants would not be in a position to argue the point.

Even where the presumption of legitimacy is a disputable one, challenge can be made ‘only by the husband or wife, or the descendant of one of both of them.’ Civ.Code, sec. 195. By reason of this statutory limitation, the following persons have been barred from questioning the legitimacy of a child born in wedlock: the state in a criminal prosecution for nonsupport of an alleged illegitimate child, In re Madalina, 174 Cal. 693, 695-696, 164 P. 348, 1 A.L.R. 1629; the beneficiaries named by the will of the deceased husband, bearing no relation to the testator but opposing the claim of his alleged daughter as a pretermitted heir, In re Estate of Lee, 200 Cal. 310, 314, 253 P. 145; collateral heris of the decedent contesting distribution of the estate to his daughter as sole heir, In re Estate of McMurray, 114 Cal.App. 439, 442, 300 P. 72; the unmarried father seeking determination of the parentage of the child born to the mother while married. Serway v. Galentine, 75 Cal.App.2d 86, 89, 170 P.2d 32. Likewise here, defendants are not within the class enumerated in the statute and so are foreclosed from inquiry as to plaintiff's legitimacy. As was said In re Madalina, supra, 174 Cal. at page 696, 164 P. at page 350: ‘This is the declared policy of this state and is simply the adoption of a rule prevailing generally in all civilized communities.’

The record reveals that the trial court, despite the provisions of section 195 of the Civil Code, deemed that the nature of defendants' controverting evidence, as embraced in an interlocutory decree of divorce between the decedent and Jeraldine Gonzales, made it proper for defendants to contest plaintiff's legitimacy. That litigation, as it herein appears, may be summarized as follows: In 1944 the parties in their respective divorce pleadings each alleged that plaintiff was the issue of their marriage. Apparently the action was uncontested and the divorce was awarded to the wife on the ground of extreme cruelty. At the hearing she testified that the decedent was not the father of plaintiff, and the trial court, upon so finding in pursuance of her testimony, included in the interlocutory decree a provision awarding plaintiff's custody to her and reciting that the decedent should not be required to contribute to plaintiff's support. No final decree was ever entered, the wife, Jeraldine Gonzales, explaining that several reconciliations undertaken with the decedent were followed by sucessive separations, and adding that up to the time of his death he contributed intermittently to plaintiff's support. She also stated on both the first and second trials of this action that her testimony in the divorce proceedings with respect to the paternity issue affecting the status of the child was false and was given because she feared that otherwise the trial court might award the custody of plaintiff to the decedent. At the time of the divorce proceedings, she was but seventeen years of age.

It is true that this divorce litigation was relevant to the question of damages sustained herein by plaintiff, for at the time of the decedent's death the interlocutory decree stood as a final adjudication between the husband and wife on the issues there submitted, including custody of the plaintiff and the liability of the decedent to contribute to the wife for his care and support. Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697; Borg v. Borg, 25 Cal.App.2d 25, 29, 76 P.2d 218; In re Estate of Hughes, 80 Cal.App.2d 550, 555, 182 P.2d 253. While plaintiff was not a party to the divorce proceedings and consequently the decree therein entered should not be deemed conclusive of his right to a recovery in this wrongful death action, see Davis' Administrator v. Cincinnati, New Orleans and Texas Pacific Railway Company, 172 Ky. 55, 188 S.W. 1061, 1064, Ann.Cas.1918E, 414; Note Ann.Cas.1918E, p. 419, nevertheless it does signify a judicial determination relieving the decedent of any legal obligation to contribute to the wife for plaintiff's support and, as such, it is material on the question of the amount of damages, if any, sustained by plaintiff as the result of the decedent's death. Civ.Code, sec. 3281. However, as above noted, the trial court did not limit the admission of the divorce decree to the issue of damages, but rather admitted it for all purposes including the issue of legitimacy and such procedure clearly constituted serious error in the light of our statutory law.

Furthermore, the instructons of the trial court served to accentuate its error in permitting defendants to contest plaintiff's legitimacy. Without detailing the instructions on the point, it is sufficient to state that they reflect the trial court's view that plaintiff's paternity claim was an open, controvertible issue for the jury's determination from the evidence adduced as above outlined. But in the absence of any prior determination of plaintiff's status in an adjudication which was final and binding upon him, defendants were precluded from challenging his legitimacy for, as to them, plaintiff was in legal effect conclusively presumed to be legitimate. Civ.Code, sec. 195. Accordingly, he was entitled to an instruction plainly stating that fact to the jury in support of his heirship claim in this action, and the trial court's failure to so charge constituted error of a most prejudicial nature.

Likewise available to plaintiff as ground for reversal of the judgment herein is the trial court's refusal to admit into evidence the stipulation as to liability made by defendants on the first trial. Pertinent to this point is the following except from those proceedings as contained in the present record: ‘Mr. Noland (counsel for plaintiff): I have been advised I think I am correct that you stipulate to liability? Mr. Hoge (counsel for defendants): Yes, as to the facts surrounding the happening of the accident.’

In chambers and before the taking of any testimony on this second trial, plaintiff's counsel offered in evidence this admission of liability and claimed the benefit thereof in disposition of that issue. The record of the first trial as to this agreement between counsel dispensing with proof of the admitted fact shows that it was made without limitation. On the second trial defendants made no application for relief from the effect of their stipulation nor showed any cause for such consideration. Rather defendants' counsel simply asserted a change of position and objected to the competency of the stipulation as evidence, upon the theory that it had no binding force beyond the first trial. With this proposition the trial court agreed and so ruled in the defendants' favor.

It is the general rule that where a stipulation is distinctly and formally made for the express purpose of relieving the opposing party from proving some fact, and no provision is made by its terms indicating a limitation of scope or the duration of its effect, that admission can be introduced in evidence and is available upon a subsequent trial of the same action, unless the court permits its withdrawal upon proper application therefor. Wigmore on Evidence, 3rd Ed., Vol. IX, sec. 2593, p. 593; see anno. 100 A.L.R. 775; Nathan v. Dierseen, 146 Cal. 63, 65-66, 79 P. 739; Andrew v. Bankers' & Shippers' Ins. Co., 125 Cal.App. 24, 27-28, 13 P.2d 515; Crenshaw v. Smith, 74 Cal.App.2d 255, 267, 168 P.2d 752. For an effective discussion and review of the law on this subject as it prevails in this state, it will suffice to refer to the recent case of Richfield Oil Corp. v. State Board of Equalization, 329 U.S. 69, where in footnote 1, page 73, 67 S.Ct. 156, page 159, 91 L.Ed. 80, the following observations are made: ‘In California a valid stipulation is binding upon the parties. McGuire v. Baird, 9 Cal.2d 353, 70 P.2d 915; Webster v. Webster, 216 Cal. 485, 14 P.2d 522; see 23 Cal.Juris. 826. It is available at a second trial unless in terms otherwise limited, Nathan v. Dierssen, 146 Cal. 63, 79 P. 739; Crenshaw v. Smith, 74 Cal.App.2d 255, 168 P.2d 752; see Le Barron v. City of Harvard, 129 Neb. 460, 262 N.W. 26, 100 A.L.R. (767), 775, and will be controlling at the second trial unless the trial court relieves a party from the stipulaton. First National Bank v. Stansbury, 118 Cal.App. 80, 5 P.2d 13. Relief from a stipulation may be granted in the sound discretion of the trial court in cases where the facts stipulated have changed, there is fraud, mistake of fact, or other special circumstance rendering it unjust to enforce the stipulation. Sacre v. Chalupnik, 188 Cal. 386, 205 P.2d 449; Back v. Farnsworth, 25 Cal.App.2d 212, 77 P.2d 295; Sinnock v. Young, 61 Cal.App.2d 130, 142 P.2d 85; see 161 A.L.R. 1163. In the present case there is no intimation in the record or briefs of fraud, excusable neglect, or other ground for relief.’

While as noted in the above quotation, relief from an unqualified stipulation of facts may be had in a proper case, defendants' objection here to the admission of their previous stipulation on the liability issue was not, in terms or effect, an application to be relieved therefrom through the exercise of judicial discretion by the trial court, but was an unconditional challenge to its competency and binding force in subsequent litigation. The trial court ruled in accordance with defendants' theory as to the legal effect of the stipulation and rejected it as competent evidence on the second trial. Since defendants' argument as made in no manner invoked the discretion and powers of the trial court on the subject of their right to withdraw from the stipulation admittedly made on the first trial, the decision on the point here cannot be correlated with those considerations as a factor of support. Nor does it matter whether or not defendants' counsel, in discussing with plaintiff's counsel the issues to be contested on the seocnd trial, stated that ‘we (are) not going to admit liability,’ for the mere notice of a change of position would not affect the binding character of the stipulation by reason of its unlimited terms, in the absence of an order of the trial court procured in an affirmative application for such relief upon a showing of circumstances constituting cause therefor. Herbst v. Vacuum Oil Co., 68 Hun 222, 22 N.Y.S. 807, 808. As the record here stands, the conclusion is inescapable that the trial court, in denying the reception in evidence and the controlling effect of the stipulation on the issue of liability, committed error prejudicial to plaintiff.

The judgment is reversed.

SPENCE, Justice.

GIBSON, C.J., and SHENK, EDMONDS, CARTER, TRAYNOR and SCHAUER, JJ., concur.