Riley v. California Erectors, Inc.

Opinion

BRAY, J.

*

Defendants appeal from judgment of the San Francisco Superior Court in favor of plaintiff in the sum of $32,500.

[31]

Question Presented:

In an action for the wrongful death of a son, evidence of the subsequent marriage of the mother, a widow, is not admissible.

Record:

Plaintiff filed a complaint against defendants for damages for the wrongful death of her son. The matter was submitted to the trial judge on the following agreed statement of facts, issue of law and stipulation for judgment: “Larry D. Moody, while employed as a carpenter by Cahill Construction Company, the general contractor, on a construction project in San Francisco, California, was killed on July 8, 1966, his twenty-first birthday, as a proximate result of the negligence of defendant California Erectors, Inc. At his death, Moody was survived by his mother Louise D. Riley, with whom he was living, and his father, Howard D. Moody. The decedent’s father and mother had been divorced in 1957; she had subsequently married Frank A. Riley in 1958 and divorced Riley in 1961, and was single at the time of decedent’s death. At the time of decendent’s death, his mother contemplated marrying Charles Dresselhaus at some undetermined future date.

“The parties have agreed that in the within action for the wrongful death of Larry D. Moody, judgment shall be entered in favor of plaintiff Louise D. Riley, as administratrix on behalf of both heirs, and against defendant California Erectors, Inc., in one of the two amounts hereinafter set forth, depending on the admissibility into evidence of the further facts, not in dispute as facts, that Louise D. Riley married Charles Dresselhaus 3 months after her son’s death, and that Charles Dresselhaus earned in excess of $15,000.00 per year from the time of the marriage to the present.

“Plaintiff contends the evidence of Mrs. Riley’s marriage, and of her new husband’s earnings, is inadmissible, and defendant contends the evidence is admissible.

“If such evidence is ruled admissible by the trial court it shall be deemed to be in evidence and judgment shall be entered for plaintiff and against defendant in the sum of $19,000.00. If such evidence is ruled inadmissible by the trial court, it shall be deemed a rejected offer of proof and judgment shall be entered for plaintiff and against defendant in the sum of $32,500.00.”