Espinosa v. Haslam

8 Cal.App.2d 213 (1935) LEONARD O. ESPINOSA, Respondent,

v.

CARL W. HASLAM, Appellant.

Civ. No. 10067. California Court of Appeals. Second Appellate District, Division Two.

June 29, 1935. Charles F. Blackstock for Appellant.

Maxwell Nichols and A. W. Robertson for Respondent.

Fricke, J., pro tem.

Action for the death of a son, Raymond, twenty years of age, by reason of the wrongful act of defendant, brought under the authority of section 376 of the Code of Civil Procedure, which provides that "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".

[1] This action was commenced February 8, 1934. It appears that on October 3, 1933, Mary Espinosa, the wife of respondent and mother of deceased, commenced a similar action against appellant, predicating her right to do so upon the alleged desertion of the family by the father, and which action was settled by appellant paying to her the sum of $1500. Appellant herein contends that respondent had no legal right to maintain the present action, because he had deserted his family. The test is whether the condition specified in the statute, and which gives the right of action to the mother, existed at the time of the death of the minor regardless of whether a state of desertion existed at some time prior thereto (Frazzini v. Cable, 114 Cal.App. 444 [300 P. 121]); and as stated in the cited case and in American R. Co. v. Santiago, 9 Fed.2d 753, involving a statute identical with section 376, the fact that, as to the wife, there may be a desertion, even where it includes a divorce secured by her, does not preclude the father from maintaining an action where at the time of the death or injury of the minor the father was not guilty of [215] a desertion "of his family", he having maintained a home for and supported and educated the children, including the deceased minor.

[2] The evidence shows that respondent and his wife separated in 1917 and have never since lived together. From 1918 to the end of 1920 the children of this marriage were not living with the mother but were at the city of Anaheim under some arrangement which does not clearly appear but which imposed a financial responsibility for their care upon respondent. Following this period the children came back into the care and custody of respondent and he took care of them until 1925, at which time the deceased went to Eldon until the latter part of 1929, when he returned to his father and lived with him until the latter part of 1932. During this period the mother seems to have written no letters nor made any inquiries concerning her children. In September of 1932 Raymond, the deceased son, apparently took exception to the fact that his father objected to his coming in late at night and to his not disclosing where he went, and left the paternal domicile and adopted that of his mother, with whom he lived up to the time of his death. Under these circumstances it cannot be said that respondent had deserted his family. It may be conceded that the circumstances under which his wife left him in 1917 amounted to such desertion as would be the basis for a divorce had the wife prosecuted such an action, but in view of the care of the children by respondent from 1917 to 1932, the fact that the eighteen year old son voluntarily left his father's home because of limitations placed upon his nocturnal ramblings and went to live with his mother does not establish "desertion of his family" by respondent.