Abos v. Martyn

California Court of Appeal Dec 18, 1935 No. Civ. 10155Published

Before: Edmonds

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Holding. The court held that a mother who was an original co-plaintiff in a wrongful death action for her minor child may continue the action as the sole plaintiff following the death of the father.

Issues

Whether a mother may continue to prosecute a wrongful death action for her minor child after the death of the father who was a co-plaintiff.
Whether the trial court erred in dismissing the mother's complaint following the father's death.

Disposition. Reversed

Quotations verified verbatim against the opinion

“The status of the mother, who it must be remembered was an original party plaintiff in the action, was by the death of the father changed from that of a proper party to the action to that of a necessary party”

“There is no reason, having any foundation upon principle or justice, to take from a mother the right to further prosecute her action for the claimed wrongful death of her child under such circumstances.”

EDMONDS, J.,

pro tem.

This action was brought by a father and mother to recover damages for the alleged wrongful death of their minor child. Subsequent to the filing of the complaint and before trial the father died, and the question on this appeal concerns the right of the mother to further prosecute the action.

When the case was called for trial more than one year after the death of the child, the mother moved the court to substitute her as plaintiff in the place of herself and her deceased husband. This motion was denied. She thereupon moved to file an amendment to the complaint, alleging the death of the husband. This motion was granted. Defendant then moved to dismiss the complaint first, as to the deceased father, and by another motion, as to the mother. Each of these motions was granted and a judgment of dismissal was entered. Plaintiff Lucia Abos, the mother, has appealed from this judgment and from an order denying her motion for a new trial.

Appellant contends that it was error for the trial court to deny the motion to substitute her as sole party plaintiff, and that it was also error for the court to dismiss the action as to her.

The right to recover damages for the wrongful death of a person is entirely statutory.

(McLaughlin

United

[700]

Railroads,

169 Cal. 494 [147 Pac. 149, Ann. Cas. 1916D, 337, L. R. A. 1915E, 1205].) A cause of action for the death of a minor exists only by virtue of section 376 of the Code of Civil Procedure, which provides that “A father, or in ease of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child, . . . when such injury or death is caused by the wrongful act or neglect of another. ’ ’ The proceeds of a favorable judgment in an action brought by a father under this section are community property, and “the mother, having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as a plaintiff”.

Abos v. Martyn

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EDMONDS, J.,

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