Delatour v. MacKay

HENSHAW, J. This action was prosecuted by plaintiff to obtain damages for the death of her minor son. She recovered judgment, from which defendants appeal. The sole ground of appeal advanced in argument is, that plaintiff had no legal right to maintain the action. Prior to the commencement of the action plaintiff had secured a divorce from her husband upon the ground of his habitual intemperance. By the decree she was awarded the custody of the minor child, and the husband was relieved from responsibility for its maintenance. The father was living at the time the boy was killed and at the time this action was commenced. The contention in support of the appeal is, that under section 376 of the Code of Civil Procedure the mother can maintain an action such as this only in case of the death of the father or his desertion of the family, the language of the section being: “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. ” It is insisted that the father had not deserted his family, and that consequently the right of action was in him, and not in the wife. The proofs showed that the divorce was obtained upon the ground of the husband’s habitual intemperance, amounting to extreme cruelty. (Haskell v. Haskell, 54 Cal. 262.) He had threatened his wife’s life, and had driven her, with the child, then two years of age, out of the *623 house, by putting a pistol to her head and threatening to' kill her if she did not leave. Since the divorce the husband has in no way contributed to the support of either his wife or the child. These facts clearly establish a desertion of the family within the meaning of the code, and the action was therefore properly prosecuted by the wife alone. The judgment and order appealed from are affirmed. McFarland, J., and Lorigan, J., concurred. Hearing in Bank denied.