Walsh v. Superior Court

STURTEVANT, J.

The plaintiff alleges that his wife employed George H. Derrick for a compensation to perform, and he performed an illegal operation on her. The plain

[455]

tiff heard of the incident, a family quarrel was had, the wife obtained a divorce and the custody of the minor child, and the plaintiff commenced an action against Derrick to recover damages. It is not alleged that the plaintiff’s wife was confined to her bed or made sick, or that medical expenses were incurred, but it is alleged the plaintiff’s wife left him on May 9, 1927, and that" since then they have continuously lived apart.

In his claim for damages the plaintiff inserted (1) loss ,of services, $15,000; (2) loss of services of his daughter, $15,000; (3) loss of the unborn child, $20,000. Derrick interposed a demurrer. Before the demurrer was heard Derrick died testate and his wife was appointed executrix of his estate. The plaintiff presented his claim to the executrix of the estate of Derrick, the claim was rejected, and the plaintiff prepared a supplemental complaint and moved to substitute the executrix in the place of the deceased. The plaintiff supported his motion by his complaint, supplemental complaint and all the records and files in the action. No other evidence was offered by either side. The motion to substitute was denied. Relying on the doctrine as stated in

Wood

v. Strother, 76 Cal. 545 [9 Am. St. Rep. 249, 18 Pac. 766], the plaintiff has made an application in this court for a writ of mandate compelling the trial court to grant the motion.

The plaintiff sets forth in his petition for a writ of mandate copies of the briefs which he presented to the trial court on his motion for a substitution of the executrix in the place of her deceased husband. The record before us does not show that in the trial court any question arose or was considered regarding the regularity of the proceedings or of the sufficiency of the papers used by the moving party. But it does show that the sole question presented to the trial court was whether the plaintiff’s cause of action, if any, survived the death of Derrick. But whether the proper practice or otherwise, that question was before the court only by treating the contention of the executrix as in effect a demurrer. The contention was sustained and the motion to substitute was denied. It follows that the ruling thereon was in effect an order sustaining a demurrer. In the case of