Garrison v. Pearlstein

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 336 This is an action brought by the father to recover his damages occasioned by the accident which was the subject matter involved in the case of Garrison v. Pearlstein, ante, p. 326 [229 P. 348]. Judgment went for the plaintiff and the defendants have appealed.

[1] The action was commenced by John D. Garrison, the father of the minor boy. The appellants claim that the mother should have been joined as a party plaintiff. In this connection they cite section 197 of the Civil Code, which provides: "The father and mother of a legitimate, unmarried minor child are equally entitled to its custody, service and earnings." By reason of the provisions of that section it is contended that the action should have been brought in the name of both parents. The manifest purpose in wording that section of the code as it is worded was to secure to the mother a property right and not for the purpose of making litigation more involved. No controversy whatever appears by the record to exist between the father and mother as to the possession of the moneys evidenced by the judgment, or that any such controversy will ever arise. We think that there is nothing contained in the section which required this action to be brought in the name of the father and mother any more than it is necessary for a husband and wife to be *Page 337 joined when suing for property that is manifestly community property.

[2] Still resting on the provisions of the code section last cited, the appellants contend that the plaintiff sued for loss of services and that the trial court gave instructions covering loss of services and loss of earning capacity, and in so doing that the trial court, by giving the instructions, stated a broader case than the plaintiff stated in this complaint. The vice in this argument is the assumption that the complaint sought recovery for loss of services only. Paragraph 8 of the complaint was as follows: "That by reason of said injuries caused by defendants' negligence as aforesaid, the said Charles Garrison has been and will be deprived of his earning capacity during his minority, and that therefore the plaintiff, his father, has been and will be deprived of his said son's services during such minority. That because of such loss of services plaintiff has been damaged in the further sum of $14,000." To the complaint the defendants interposed a demurrer, but they did not contend that the complaint was ambiguous as to whether it charged the loss of earnings, the loss of services, or both. The demurrer was overruled. No other attack was made upon the relief sought until after the trial court had given its instructions to the jury. It is now claimed that instruction 20 included as elements of loss both loss of services and loss of earning capacity, and that the instruction should have been confined to loss of services. We think the issues raised by the pleadings were broad enough to justify the giving of the instruction complained of.