*1 rulе now majority announced cannot be reconciled with holding our in the Greer case. consequential age
Nor present that the victim’s appears case years beyond age to be 18 and therefore protected under age section subdivision 1. The actual victim, evidence, as revealed does not control problems. determination included offense Under the ease, rule stated the Greer the test is whether lesser legal offense, proposition, as a greater included within the age offense. actual victim as revealed important any purpose evidence is not other than deter- mining sufficiency support of the evidence to the conviction section By under a matter not here charging involved. rape, implicitly clearly forcible the information but incor- rape by porated voluntary the crime intercourse with a statutory age female under the put petitioner and hence age notice that his victim was properly an issue within the case.
The writ should be denied. In A. No. 23492. Bank. Oct.
[L. 1955.] al., Appellants, DOROTHY BUCKLEY et FRED D. CHADWICK, Respondent. *3 Dunbar, P. Block and Pray, H. Block Samuel &
Russell Appellants. Rose for Eric A. & and William C. Wetherbee
Parker, Stanbury, Reese McGee Respondent. for SCHAUER, plaintiffs, the wrongful death action J. —In deceased, Buckley, of Allen
surviving and minor son widow ver judgment entered appeal adverse son in favor of the wаived During the widow trial diet. any recovery. We have con- proceeds rights her furnish insufficient contentions plaintiffs’ various cluded af- should be reversal, judgment grounds firmed. *4 of a «appeal transcript on consists clerk’s
The record statement, by plaintiffs, prepared proceedings oral a settled (See Appeal, 8.) rule Rules on Cal.2d The at the trial. narration of comprises in a numerous facts statement in part partial “from reporter’s verbatim extracts a transcript proceedings.” of oral it From such statement appears decedent, Buckley, Allen was in the business contracting furnishing of dirt and materials other jobs. dump construction He two and rented owned trucks necessary at equipment various times cranes and other en- business. On March he and one McDonald partnership tered into a with each other to furnish certain agreed dirt on party a construction site for a third equal profits. day part- division On the same the two business, defendant, contracting ners rented from also in the drag crane, operator a line rental without an and on a “bare contract, oral, “provided basis.” The lease which was partnership provide experienced operation said oiler operate of the crane and also Mr. McDonald would it.” Defendant stated that time thаt the crane was in first class at worked, condition and had on since it came off the last been job. transported pit where McDonald the crane to a dirt partnership loading dump it for the used trucks. April 19, 1951, while
On McDonald operating was the crane deposit dump truck, dirt the boom cable of the crane fell, striking broke and the boom killing Buckley, who standing running board of the The truck. one-half inch boom cable broke inside drag the cab of the line crane place at on, on the cable around, that was rolled and off the drum the boom was raised and operation. lowered in sharply evidence conflicts concerning what caused the cable to break. The settled statement recites that “At time of the accident said being crane was operated and main- tained said partnership through Mr. McDonald and said oiler” provided by the partnership. There expert testi- mony point that at the of break the cable had been worn and defective for some time and was “worn long out a ago,” time and that such condition could not have developed during the period partnership had used the crane. Conflicting evi- dence was that defendant Chadwick and his mechanic had inspected closely the cable renting before part- out nership and that it was in good then condition. McDonald testified that it was the duty oiler’s to “oil the machine” duty but it was not his inspect the cable and that if strand of view, the cable “is broken either I or the oiler caught it,” have would while expert defendant’s witnesses stated inspected oiler should every the cable
188
day intervals, and, further, oiled at that “the ends of the broken . cable . where the break occurred showed damage resulting faulty
abrasive winding and unwind- ing” of the cable and “if that McDonald and oiler had during allowed overlap the cable cross-wind the drum on days they using crane, enough damage the six were could have been done in one second use under strain to caused the cable to break.” complaint is counts,
Plaintiffs’ framed two one for an alleged warranty breach of and the other alleged negli- gence of crane defendant owner. Defendant answered with general denial, pleaded and also contributory negligence of deceased, and unavoidable grounds accident. As requiring judgment reversal of the plaintiffs defendant's favor urge jury instructions, error in and also that erroneously the court prevented peremptory the exercise challenges by plaintiffs jury. in the selection of the jury nеgligence
The court instructed the part Buckley or of agent the deceased his which proximately contributed to the would recovery against bar de- fendant, that the evidence established being that the crane was agents operated deceased, and maintained agent, McDonald was such an found “that any negligence there was of one Buck- or both of ley’s agents, oiler, McDonald and the contributed any degree proximate accident,” plain- cause of the then recover, tiffs could not and that the “reason for the rule is negligence agent scope of an within the course and employment imputed principal.” of his upon Campagna In v. Ry. reliance Market St. Co. (1944), 304, (see 24 Cal.2d 307 P.2d also Bennett [149 281] (1928), Lyon v. Chanslor & Co. 204 101, 105 P. [266 , Ry. (1937), Bencich Market v. Co. Cal.App.2d St. 20 803] 518, 398]), plaintiffs 526 P.2d first contend that the in [67 imputed negligence as to structions were erroneous because pleaded such defense was in defendant's answer and there however, fore was not issue. Plaintiffs first raised point, trial, new through on their motion for and the case was tried theory pleading out was sufficient in this Further, appeal respect. objection the record on discloses no relating plaintiffs agents to evidence circumstances, plaintiffs Under such will be deemed deceased. (See alleged pleading v. to have waived defect. Miller (1951), ; Vaughn 37 Cal.2d 93 P.2d v. Peters [230 803] (1948), 432]; Jonas P.2d Hinkle Cal.2d 605 [191 Southern (1939), Pac. Co. P.2d Cal.2d [87 ; Cal.App.2d 674, (1944), Swink v. Gardena Club 349] ; Bergmann (1932), 680-681 P.2d Simpson 313] Cal.App. 1, ; 5-6 v. Leonardi P.2d Resetar Cal.App. 765, 71].) Plaintiffs also urge that there was no evidence that the agent, oiler was an or employe servant of the partnership *6 ofor the deceased. In addition to the provi rental contract sion that partnership the furnish experienced an oiler in operation the of the crane, the settled statement prepared plaintiffs recites as indicated above that “At the time of the being operated accident said crane was maintained partnership said through Mr. McDonald and said oiler.” McDonald, plaintiff, as a testified, witness for “Q. you Did have someone else working Q. ? A. I had there an oiler. And job you was he on long job? the as were on the A. Yes.” Also, judge the opinion trial upon deny his memorandum ing plaintiffs’ (which motion for new opinion a trial is in statement) cluded the settled that wrote “the case was tried argued upon the assumption agency that such existed,” plaintiffs, and that requested counsel when argument oral pointing any indicate “evidence infer agency ence other than the of . . pоint the oiler could none.” Plaintiffs do not claim such of statements the trial judge incorrect, appeal point are and on have failed to provide any or a support out record of evidence would finding agent a that the oiler employe other than an partnership. point pro of thus Their contention on this ground (See vides no for reversal. Brokaw v. Black-Foxe ; Military 274, (1951), Institute Cal.2d 280 P.2d 816] [231 ; 95, (1924), Philbrook v. Randall Cal. P. 739] ; Bacon v. (1913), 165 Cal. Grosse P. 1027] (1904), Gutting Canty Fruit Packing Co. ; 426, 559, there and eases 695-696 Cal.Jur.2d § cited.) testimony estab quoted also statements opera any negligence by the oiler in lish that McDonald or employment on scope their tion the crane was in the is shown not partnership; behalf thus no error jury employment. submitting scope to the the issue of urge any negligence agent Plaintiffs next an imputable wrongful is to an heir in a deceased not court, however, instructed the action. The negligence agent proxi or of deceased death, mately recovery contributed then was barred. Very recently, pointing general prin after first out the ciple relationship joint that “The venturers is of a partnership,” limited we agency, mutual akin to held that negligence joint employes or of his “the of one venturer joint imputed acting in venture is connection with joint (Leming Trucking Co. other venturers.” Oilfields Applying 23].) P.2d Cal.2d 350 [282 here, any negligence same rule follows that oiler, agent partnership, partner of the McDonald or Buckley. imputed would be contend, challenging article upon in reliance Plaintiffs also 310, authored appearing Law Review in 42 California Angeles Superior Los Judge Paul Nourse of the learned (whether contributory Court, that event deceased, him) defense in a imputed challenge, defendant Meeting wrongful death action. equally urges, opinion learned judge trial de- denying plaintiffs' motion for livered a new trial case, holding definitely law is settled to the contrary. origin, development acceptance Since contributory negligence recognizing rule decedent death actions not heretofore been as a defense *7 court, by give extensively we it our explored this attention. wrongful no death action this there was in Before (Kramer Market B. Francisco Street Co. San state. Legislature, 435.) year following In that the Act,1 substantia] Campbell's and to a of Lord philosophy the compensating Campbell’s “An Aet the Families of Aet: for 1Lord August by [26th 1846.] killed Accidents. Persons maintainable at Law now Person Action “Whereas no may Aet, Neglect, wrongful caused Death by or Default who right еxpedient Person, and Damages and it is oftentimes of another Injury in for Wrongdoer be answerable in Case should such by by most Excellent Queen’s it enacted him: Be therefore so caused Spiritual by Majesty, and of the Lords and with the Advice Consent and Commons, assembled, present in and Temporal, Parliament and same, Authority shall That the Death of Person of the whensoever Act, Aet, Default, Neglect, Neglect, wrongful or and the or be caused (if ensued) had not have entitled the is such would Death as Default Party Damages respect injured in an action and recover maintain every thereof, in such Case the Person who would have been then and Damages; be to an for shall liable Action if Death had ensued liable notwithstanding injured, although Death of the Person and such in under Circumstances as amount Law been caused Death shall have Felony. enacted, every for be it That such Action shall be the benefit And “II. phraseology, extent its (Stats. created such a cause of action. 447.) 1862, p. (set Campbell’s Like Lord out in Act material part in margin), provided (in 1) it That “When- section act, ever the person death shall be caused neglect, default, or act, default, neglect, and the is such (if ensued) as would party death had not have entitled the injured respeсt to maintain an action damages and recover thereof, then, . . . person liable who . . would have been ensued, damages, death had not shall be liable for to an action notwithstanding the person injured ...”
In the interest of accuracy, to dispel a misconcep- way tion which has found its into some writings, herein- after detail, mentioned more it should be noted that quoted language (which of section 1 is almost identical with language original Campbell’s Lord Act) does not expressly right make the dependent to recover on the absence contributory negligence on part of the decedent. Such (and language may the same be said of Campbell’s Act) Lord design by Legislature indicates no to state a rule either requirement plaintiff show as a of his case that the decedent contributory was free negligence, or that contributory negligence of the decedent should or should not be available as a It defense. makes no reference whatsoever to the conduct of the injured person (the decedent) or to right his ultimate requires only to recover if he had survived. In terms it act, neglect, that “the tort- default” of ,as he such would party injured “have entitled the feasor maintain an action damages respect and rеcover thereof.” Obviously, it does not party state that the conduct of “the Wife, Husband, Parent, and Child of the Person whose Death shall caused, brought have been so and shall be the Name of the deceased; every Executor or Administrator of the Person and in such may Jury give Damages they may proportioned Action the such think Injury resulting respectively from such Death to the Parties brought; whom and for whose Benefit such Action shall be and the the Costs not recovered from the recovered, deducting Amount so Defendant, after amongst shall be divided before-mentioned Parties Jury by such Shares as the their Verdict shall find and direct. always, enacted, “III. Provided That not more than One respect Subject Action shall lie for of the same Matter of Com- *8 plaint, every and that such Action shall be commenced within Twelve Calendar Months after the Death of such deceased Person. ‘ ‘ enacted, every IV. And itbe in That such Action the Plaintiff on the required, together Declaration, Beeord shall be with the to deliver to the Attorney Defendant or his a full Particular of the Person or Persons for whom and on brought, whose Behalf such Action shall be and of the respect Damages Nature of the Claim in sought of shall be to be (9 Viet., 93, pp. 531-532.) . . recovered. .” & 10 eh.
192' contributory negligence
injured” have been free from must his or not con- negligence on should should or that such to the cause action created. Thus the defense stitute a ordinarily presumed ac- negate be Legislature did not its contemporary by the courts construction ceptance Campbell’s Act, hereinafter language in Lord the similar interpret free to discussed, left courts of this state but light common law as in the apply the statute field. might appear appears misconception Another that section 1714 by creates, language its limits, the Civil Code (See contributory negligence. 312.)
defense Cal.L.Rev. contributory negligence is not of statutory But the defense by As was stated the United Supreme creation. States long ago as who negli at least as “One Court injury brought upon himself gence has cannot recover is the rule of for it. Such the civil damages and of the (Baltimore & P. R. Co. v. Jones common law.” 506].) But L.Ed. even if we take U.S. contributory definitive of generally as section nothing- California, precludes find in it which applica we ‘‘ eases. The wrongful Everyone death section reads: tion only for result acts, not of his willful but responsible, is injury occasioned to another his want ordi for an also management property person, in the of his or or nary care skill has, willfully ordinary as latter want except far so The injury upon liability himself. brought extent of care, compensatory the title on defined relief.” is such cases “injury another” occasioned to which is Clearly, the injury person is the who is section spoken wrong negligence. pertinent As actor’s victim “injury occasioned another” caused ease, the death ful victim; by the the cause of action created death injured person for but is is not statute wrongful death compensate pecuniary of kin for their next his heirs to, relationship and the economic resulting from their loss injured person. plaintiffs are of, the death wrongful statute; they contemplated by injured as persons damage ensuing consequential suffered persons who are injured. Thus section person of from the death statute, completely silent like the contributory negligence as a defense to actions question language Insofar as the act. latter brought under the substantially the same is concerned it of section *9 193 and, hence, is to be law general rule common new enactment. thereof, not as a as a continuation construed (Civ. Code, 5.)§ so,
However, urged, properly that since can be it Campbell’s the substance of Lord adopted Act was in Cali qualifying fornia applicatory without strongly rules it is to be presumed Legislature light acted in the con temporary (see 309-311, construction that act 50 Am.Jur. 319), together with being applied the rules which were § upon (see McColgan actions it and defenses thereto Holmes v. (1941), 426, ; 17 Cal.2d 430 P.2d Union Asso Oil 428] (1935), ciates v. Johnson 2 727, 291, 735 Cal.2d P.2d 55, ; (1922), 98 A.L.R. Estate 188 Potter 68 826]). respect In contributory negligence of the decedent as a defense such there can be no actions doubt that the rule is as old as Act Campbell’s the act. Lord was enacted in 1846. In 1849 the Court of Common Pleas before it had several cases in which negligence and contrib- utory negligence were issues and in one which (Thorogood Bryan (1849), 8 115, v. print C.B. 65 E.C.L. 115, English 137 Re- (Common 15)) Book Pleas the action was based Campbell’s on Lord Act. report The of the case relates, “The first of upon these was an action the case brought by the plaintiff Thorogood, Sarah as administratrix of her late hus- 93, band . .. under the statute Vie. damages c. to recover against the negligently defendant for causing the intestate’s . . judge that, . The learned jury, told [P. 453.] they opinion . were . . want care on part that. of the driver of Barber’s drawing omnibus [deceased’s] up put down, kerb to the deceased of care want himself, deceased had been conducive injury, in cases, notwithstanding either those the de- — servant) (by guilty fendant her had been negligence, their must for verdict the defendant.” It was held that properly law for judgment instruction stated the was affirmed. defendant years (in later Senior Ward E. & E. Some Bench, English Reprint (King’s E.C.L. 954) 49) Campbell, himself,
Book we find Lord as Chief Queen’s Justice, speaking declaring for the Bench and upon question. The applicable to an action the statute law (P. 954.) trial, “At report tells us: before Cockburn C.J., Derbyshire, appeared at the Summer Assizes last brought, the action was under stat. 9 & Viet. e. widow, damages the plaintiff, a to recover for the death son, accidentally her Senior, John who was killed while Camp employ . . Lord defendant. [P. 956.] judgment
bell now of the Court. We are C.J. delivered the opinion in this that the rule to enter the verdict case for absolute. the defendant or to a nonsuit must be made enter subject all and com upon are collected authorities (3 Macq.App. mented The Bartonshill Co. v. Reid Coal 266). authorities, would According to these action Ca. had come *10 been deceased not have maintainable the em purely negligence the of fellow servants death from However, strong case work him. ployed in the same with defendant, contributing negligence part of the out; and, had not death, if an answer the has been made the by shewing negligence on given case, been to this death, we think the to his which contributed the deceased .. ought liable. defendant to have been held 957.] [P. passing the statute Legislature, We the conceive that brought, give action is intended to an which this action to representatives person killed negligence only of a the where, survived, himself, law, at he he the common had could against person guilty the have maintained an action of the the alleged negligence. case, Under circumstances of this survived, deceased, if had the he have could maintained an for what he defendant suffered the action the for, although that he not: We think could the accident? might of the defendant have been an answer to negligence chiefly negli caused defence accident servant, negligence plaintiff of the him fellow gence would, accident, materially upon contributed self, which deprived any remedy. him of principles, established well Judgment . . injuria. the defendant.” non fit Volenti Regent’s Witherley Canal Co. see same effect To 2, English Reprint 2, 104 E.C.L. (1862), 12 C.B.N.S. 1041, 20) 1042.0 Pleas Book (Common contributory availability as a Thus the actions, brought under wrongful death the statute defense act, of the California progenitor to be appears acted. As hеreinabove when California firmly established presumed be that such enactment was indicated, is to it English pertinent ap knowledge decisions of the with (See McColgan (1941), law. Holmes plication Johnson 430; Associates v. Union Oil supra, 17 Cal.2d supra, 735; (1935), Cal.2d Estate Potter supra, 860-863, 55, 68; also 82 see and C.J.S. § cited.) cases there Further examination the California legislation and the decisions which it its followed and sev- amendments, eral explains, historically, at origin, least and establishment, pertinent demonstrates the rule in this state. provided
Section 3 the 1862 California statute action brought should be the personal repre the name of sentative for the exclusive benefit of widow and next of kin deceased, could consider the pecuniary injuries resulting of kin to the widow and next pecuniary exemplary damages. award both Section of the statute included the statement of a rule which would (Code now fit the presumption Proc., definition of a Civ. 1959; also, §1961). see id. It declared that “Whenever § any person death injury shall be an received caused in falling through, by drowning or having through, after fallen any sidewalk, opening street, alley, or place any defective wharf, ., city person . . of such shall to have neglect deemed been caused person was, default pеrsons duty . . . whose at street, time kept repair sidewalk, ... to have such alley, or wharf ...”
In 1867 apply the court was called the statute (Gay 153) *11 Winter, brought by action a surviv ing lather, personal representative, as the to recover the son, 5-year-old alleged death of his who to was have drowned 154) falling through after (p. a hole the and street thence Bay “into of the waters of Francisco the San beneath.” ground, others, moved for on among Defendants a nonsuit the affirmatively plaintiff that the evidence showed that father contributively negligent was himself allowing the deceased 156) (p. go minor crossing, “to alone about said street where said was Judgment hole known to exist.” nonsuit granted, appeal plaintiff judgment and on the was re negli contributory versed. That the court considered that (or gence plaintiff himself, of the of the if decedent estab lished) recovery apparent would bar to is constitute a from 162) (p. It opinion. specifically its states “How far that plaintiff go purpose showing the was bound to for the that not to own the death of his intestate was attributable his appears principal question case.” negligence, to the the be After referring deny recovery plaintiff then to rules to 163) personal injury (p. appears “if it that his аction negligence own any degree injury contributed to the 163-164) sustained,” he (pp. stated that “In a general sense, proof plaintiff, is on the and the burden undoubtedly case, jury he must in view of which make the say they through can injury the was sustained believe defendant, unaccompanied by the fault the fault inadequate part plaintiff,”2 the but that such a rule is the 164) plaintiff wholly any proof unable make (p. where “is to conduct',” 164) (p. own event “the as to his and such jury ordinary diligence on liberty at to infer care and are from part plaintiff the all the circumstances habits the natural instinct case—his character and plaintiff a case which does preservation. self ... If makes the think case charge negligence not we his should him with been jury. should have go It allowed [Citations.] exer say plaintiff’s intestate jury left whether the to the ordinary diligence, under an instruction cised care plaintiff not be entitled would that if he did not Court ato verdict.” court,
Although epitomized, the discussion as above indiscriminately appears contributory to refer negligence (i.e., plaintiff child well as the deceased as father representative), opinion clearly personal indicates (1) personal injury rule a general plaintiff the views 164) will him (p. “make a case which leavе should blameless” (cf. May Hanson Am.Dec. plaintiff prove not incumbent 135], [“ [I]t ordinary injury, care avoid . . . by him of but exercise part plaintiff, of it on lies on proof want defendant; he fact in excuse of who avers a his own ... (2) it”]), misfeasance, prove unable to must own or he the decedent’s conduct then produce proof of (more properly, an “inference” to the benefit is entitled 164) “If (p. plain on his of care presumption) charge negligence him with which does a case tiff makes ” go It be allowed to his ease should we think concerning holding of the court worthy mention that contributory in relation to proof burden positive reliance on the without reached to have appears been *12 153, 162-164, case, word sometimes uses the opinion 2The synonymous “plaintiff” the deceased. with declaration of 2 of section the 1862 statute death person by a drowning falling through caused a after hole wrong- by street “shall be have been caused deemed to neglect” ful it duty of those was the street whose to maintain in repair.
In 1872 the 1862
repealed
statute was
and reenacted as
section 377 of the
Procedure,
Code of Civil
reading as follows:
“When the
person
death of
wrongful
caused
act
or neglect of another, his
persоnal
or
heirs
representatives
may maintain
damages
an action for
against
person
caus-
death;
ing the
or when the death ...
oy
injury
is caused
an
in falling through
received
any opening or
place
defective
in any sidewalk, street, alley, square,
wharf,
or
heirs
personal representatives may maintain an action
damages
person
was,
duty
whose
injury,
at the time
kept
repair
have
place.
every
such sidewalk or other
In
such
jury may give
action the
damages,
such
pecuniary or
as,
exemplary,
under
case,
all the
may
circumstances of the
just.”
them seem
Thus,
permitted
the reenactment
brought
action to be
by the
personal
heirs as well as
representatives,
language
expressly
deleted
requiring that
act, neglect,
“the
.
default
.
such
[of
be]
tort-feasor
(if
ensued)
as would
death
not
had
the party
entitled
injured to maintain an action
damages
respect
and recover
thereof,”
positive
and likewise deleted the
direction that a
wharf,
death caused
falling through
sidewalk,
a defective
etc.,
or street,
“shall
be deemed
have been caused
neglect”
charged
wrongful
of those
with
repair
thereof.
(Code
1873-1874,
years
294)
p.
Two
later
Amendments
amended;
again
section
this time the referencе to defective
streets,
wharves,
sidewalks,
etc.,
was deleted
section
section
limited
the cause
action under that
“
’’
minor,
wrongful
person
being
death
and actions
left
for the
a minor were
for treatment
section 376
the Code Civil Procedure.
310)
(see
both
It has been
42 Cal.L.Kev.
Lord
asserted
substantially
Campbell’s Act and the
similar
California
provided
should
“expressly
cause
action
statute
deceased, if
personal representative only
in the
vest
survived,
deceased,
he
have maintained
action
had
could
tortfeasor,”3
upon Gay v. Winter
against and in reliance
Torts,
965;
61, 82;
p.
16 Am.Jur.
Annotation
$
also: Prosser
3See
14.
A.L.E.
*13
(1867), supra,
is
34 Cal.
that
this statute it
“Under
part
case,
his
necessary
plaintiff prove,
a
of
as
only
the deceased
defendant but that
negligence
the
of the
degree to the
contributing
in
negligence
was
from
free
statute created
injury
in
death. Thus the
which resulted
his
only in those
representative
personal
a
in the
cause
action
negligence,
not, by
own
did
his
cases where
decedent
the
in
death.’’
injury
his
the
which resulted
contribute to
However,
already
we have
noted,
as
the
is descriptive
statute
only
feasor;
it makes no
the act
the tort
reference what
soever
the
or
right
to
conduct of the decedent
to his ultimate
recover,
contributory
to
as
defense
negligence,
a
survived,
Gay
if he
opinion
had
and neither does the
in
v.
required
showing
Winter hold that the statute
of decedent’s
contributory negligence
recovery
freedom from
before a
could
(42
suggestion
be had.
It follows that
the further
Cal.L.
311-313)
by omitting
Bev.
that
the
enactment
provision
assertedly
377 the
section
which
“made the de
negligence
upon
freedom from
cedent’s
a condition
cause
’’
created,
Legislature
it
action which
intended to remove
contributory negligence by
recovery
to
deceased as a bar
wrongful
action,
in
In
death
without merit.
the first
by any language
place,
had never
used
Legislature
it
negligence
freedom from
a condition
“made
decedent’s
’’
Gay
created,
it
Winter
upon
the cause
action
In
if it had
place,
so hold.
second
been the
does not
contributory
Legislature
provide
to
that
of the
intention
(cid:127)
easily
recovery, then it could
negligence should not defeat
stated,
has
done in section 37084
clearly have
as
been
so
Moreover,
§2801).
(see
Code,
it
also Lab.
Code
Labor
likely
intent,
in view of
appears quite
there was
as
supra,
Gay
in
Winter
holding
the discussion and
contributory
(1) recognize
negligence
162-164, to
eases,
street,
recovery
etc.,
notwith
to
in defective
as a bar
declared, and
positively
presumption theretofore
standing the
merely
contributory negligence as
(2)
clearly accept
more
than
wrongful
cases, rather
all
matter
defensive
employer]
[against
it is
the uninsured
such
“In
action
3708:
4Section
grew
employee
injury
was a direct
result and
presumed
proof
employer,
negligence
the burden of
of the
out of the
negligence.
presumption
It is not a defense
employer,
to rebut
contributory negligence,
employee
guilty
employer
injury
of,
complained
the hazard
the risk of
or assumed
regulation
negligence
No
of a fellow servant.
contract
caused
foregoing
employer any of the
defenses.’’
shall restore
plaintiff’s
case
negation
consider the
thereof
evidence
chief,
lay
power
produce
whether
it
subject
or otherwise.
important
More
ascertaining
the established law
appears indisputable
that, regardless of whether we view
origin
contributory
rule m
being
death cases as
sound in law and
or as being
reason
questionable
both,
the rule itself
emerged
progenerate
right.
its own
From the time
original wrong
California’s
ful death statute was
presumptively
enacted
in the
light
English
court
Campbell’s
decisions under Lord
Act,
discussed,
present
hereinabove
down to the
the California
*14
consistently
rule,
eases have
unswervingly
followed the
prevail,
likewise has been held to
in the absence of
limitation,
statutory
express
jurisdictions,5
other
most
contributory negligence
of the decedent
recov
bars
(See
wrongful
ery
e.g.
death
Gay
actions.
v
California:
164;
153,
(1867), supra, 34
Winter
Cal.
Glascock v. Central
;
137,
(1887),
Pac. R. Co.
Pepper
73 Cal.
141
v.
P.
[14
518]
;
389,
(1895),
Co.
Southern Pac.
105 Cal.
399
P.
[38
974]
942,
(1898),
Pac.
Studer v. Southern
Co.
Under the which have related it circumstances recognized must Legislature pro sees fit that until the vide in in otherwise the rule state that is established contributory negligence on the actions and, shown, will of the deceased is matter when defensive recovery. bar
Finally, plaintiffs they contend that erroneously pre- were vented exercising court from peremptory their chal- lenges jury. in the selection The settled statement prior shows that to the in chambers, trial and judge the trial plaintiffs informed counsel for both defendant practice in department respect with of per- waiver emptory challenges is attorney as follows: “That once an peremptory jurors waived challenge to box, challenge gone, jurors far so as those are сon- cerned; peremptory only that a can thereafter be exercised respect juror jurors with to a called into the box after They the said waiver. attorney were told that if also either were handling dissatisfied method peremptories with this he, should, being advised advance of what happen, would desiring record, to make a come to the make bench and jurors, record . hearing outside . so that attorney] having would not be embarrassed to chal- [such lenge presence jurors sitting in the someone jury box whom he knew was would not be excused.” The then following selected in the manner: After the box filled, plaintiffs exercised four peremptory challenges alternately passed with the defendant and then peremptory fifth) challenge (plaintiffs’ jurors then in the box peremptory Defendant then juror exercised challenge to 9,No. and after a new venireman had plain- entered the box open challenged juror No. tiffs court had who been plaintiffs in the box at the time waived peremptory. their fifth challenge The court disallowed this ground juror plaintiff had been box passed at the time had peremptory peremptory that their now restricted juror vacancy who had been called to fill the created peremptory challenge. defendant’s last exercised also in chambers court reminded counsel conference concerning proposed impose respect the rule it then peremptory challenges. Thereupon the exercise of the attor- *16 juror 10 as court, interrogated No. nev, leave of further challenge there- upon him to the effect of the unsuccessful ruling exception he had taken to the court’s after withdrew an Later, challenge 10. expressly withdrew his also No. attorney pro- attorneys plaintiffs’ went to the bench and in cham- forgotten what the court had said he had tested that ruling on exception court’s renewed his bers and throughout jury No. 10 remained on the Juror matter. case. the Code of Civil Procedure reads: Section
“ peremptory six challenges. side is entitled to . Bach challenges full, taken panel are until the peremptory If no passed alternately, the sides com- they must taken pass consecutively, both plaintiff, and sides mencing with the sworn, court, cause, good unless the then be shall for order. Bach side shall be entitled to have shall otherwise any exercising peremptory challenge. panel full before challenges remaining peremptory with side The number of by any passing peremptory chal- not be diminished shall (Stats. in italics were added lenge.” portions The §1), the trial instant case. after ch. peremptory exercise entitled to plaintiffs were That they sought, The broad is clear. challenge which proceedings before him judge control power of a contrary law. 118, to warrant an exaction go so far as does not Lang Silcox As declared right challenge a certain number 297], “The P. 123-124 [20 (Code under the statute. is absolute jurors peremptorily Proc., 601.) appellant had once fact Civ. § sought juror afterward to be including the jury, passed the proper practice right. The off this not cut challenged, did panel, fill jury in case is to a civil of a selection cause, challenged for being jurors one of ’ ‘ cause, immediately another to take his call or without challenge determining whether to party, place, so that ” not, panel before him. may a full ] do so with [Citations. (1873), 45 Cal. Taylor Co. (See v. Western Pac. R. also Rich Vance v. 329-332.) contrary appears in Nothing where, 909], when (1895), 110 Cal. ardson peremptory “our full, waived defendant-appellant panel “I am then stated plaintiff counsel present,” for the case no- Vance in the jury.” There was with the satisfied respondent, challenged juror for one a new substitution now in the case Lang as well in Silcox as occurred such *17 Vallejo (1915), us. R. before etc. Co. v. Reed Orchard Co. material, 238], 545, 169 559 P. not here it Cal. as [147 appears merely occurred when hold that no error permitted plaintiff-respondent court to “exercise remain- its ing peremptory challenge panel filled and all after the jurors passed for cause both had been examined and (Cf. 73, parties.” (1938), Austin 11 79-80 v. Lambert Cal.2d 849, 849].) P.2d 115 A.L.R. [77 However, as in People here v. Estorga (1928), 206 (see 81, People Cal. 87 P. v. also (1928), Hickman [273 575] 909, 470, 481 P. P. 1117]), 270 the appellant [268 1‘has made no showing, affirmative and does show, offer to any . jurors actually of the . . who were sworn and biased, served in the trial of the cause were prejudiced, or any way jurors; unfit to serve as appear trial nor does it reason the manner in jury which the selected . . [appellant] impartial did not have fair and trial.” circumstances, although Under such which method approved was selected was erroneous and cannot be court, by this appear the error nevertheless does not us, 186-188, epitomized pages record before which is supra, jurors which also establishes that the polled were were verdict, miscarriage unanimous in their have in a resulted justice, ground and hence furnishеs no reversal VI, (See Const., 414; judgment. People art. see also v. § (1942), Hoyt ; 306, 20 Cal.2d 318 v. P.2d Jackson [125 29] (1937), 350, Superior 243, 10 Court Cal.2d 358 P.2d [74 ; Ry. (1930), v. Atchison Switzler etc. Co. A.L.R. 1422] 138, ; People v. Cal.App. P. Rambaud [285 918] 685, Cal.App. 954].) P. stated, judgment For reasons above is affirmed. J., J., Gibson, Shenk, J., Edmonds, J., C. and Spence, concurred. J., Concurring and Dissenting. TRAYNOR concur in —I reasoning of the majority opinion
the conclusion contributory is a defense in wrongful death action, agree I but with Justice Carter that the trial court prejudicial denying plaintiffs error in committed their statu- challenge. tory right peremptory to a For I that reason judgment. would reverse
CARTER, J.—I dissent. agree reasoning I with the majority cannot contributory negligence should, must, of a decedent either imputed wrongful to the heirs of said decedent action. wholly statutory;
The cause of action for
death is
entirely
separate
and distinct
action
cause
(Bond
(had
lived) might
had
the decedent
he
366,
Cas.
Railroads,
United
P.
Ann.
1912C
Cal. 270 [113
50,
McLaughlin
Railroads,
;
L.R.A.N.S.
United
to section 377 of the Code Civil
states that
time,
no
however,
contributory negligence been abolished
’’
specifically
Contributory negligence
was never
a defense.
*18
by
although
appellate
mentioned
the section as a
the
defense—
contributory
of
negligence
courts assumed that
recovery by
personal
or
his heirs
the decedent would bar
original
representative.
language
enactment which
the
contributory
imply
been
that
decedent’s
could have
said to
the
brought by
personal
the
to
negligence
an action
was defense
of the Code
representative was
section 377
deleted when
right
giving
also the
Civil Procedure was
to the heirs
enacted
seq.) points
Judge
(42
to
310 et
sue.
Paul Nourse
Cal.L.Rev.
for
grounds
of action
that
cause
“Upon
out that
the
separate and
wrongful
is a
cause of action and
death
new
might
from
that
the deceased
distinct
cause of action
uniformly
that the admissions
had, it has been
held
might
tend
and which
the decedent
his interests
heirs
against his
not
negligence,
establish his
are
admissible
Code Civil
brought
377
an action
under Section
64
721,
P.
[Hedge Williams,
Procedure
v.
[63
Reissinger,
v.
106,
Am.St.Rep.
;
P.
Marks
366]
that
to hold
anomalous
App. 44, 54
P.
It seems
[169
243] ].
of action
a cause
negligence of the decedent will defeat
may not
admissions
for
his own
death,
his
and to hold that
proof
negligence.
his
used as
Legislature
having
“The
made
not
the decedent’s freedom
upon
from
negligence cause of action
condition
which
created,
power
graft
are
without
such cоndi
Courts
upon
cause of action. To do so would be to
tions
that
amend
1;
Const.,
§
by judicial
III,
decree. Cal.
art.
the statute
[
;
Allen,
P.
16 L.R.A.
Moore
Allen v.
An additional distinction between wrongful damages and a are the recoverable: death action action, ordinary injury plaintiff In the recovers personal com- pain suffering, together for medical with expenses, or action, may damages; wrongful the heirs pensatory in a death injuries loss of damages they for have sustained: recover society, support, protection. comfort and the defense of Judge Nourse “submits” that the basis for lacking in contributory negligence entirely an action wrongful though dealing even with actions cases held Procedure have under section 377 of the Code Civil says contributory negligence was a defense. He that that wrong, to overrule are this court should not hesitate the cases them. reasoning by Judge agree logic and set forth I with the
Nourse; holding contributory negligence I the cases feel that wrong are and should be death actions a defense perpetuated that the error should not be overruled being done in the instant case. disagree majority holding with in its
I that also obey court to thе clear mandate section of the trial failure prejudicial was not of Civil Procedure error. 601 of the Code sharp concerning person conflict The evidence was plain- which caused the death of responsible for the The returned a defendants’ verdict. decedent. tiffs’ majority plaintiffs made no “affirma- by the told We are biased, jurors prejudiced, showing” any of the were tive fact, jurors. As a would be to serve as matter of unfit juror question the effect the had on impossible to tell jury. impossible also returned It was verdict adverse “affirmatively” juror in show plaintiffs to for the problem loss contributed case. question provisions of section fall under the does not involved here Procedure, and even if the Code Civil subdivision jurors’ prejudice affidavits of bias or produced had plaintiffs juror challenged it would have availed part of the nothing. them or evidence of affidavits char- is well settled It concurring of either concerning mental attitude acter contradict, impeach or defeat jurors which tend to dissenting Lake, County (Murphy are inadmissible. their verdict *20 207 Claremont, ; City Cal.App.2d 106 61 Barrett P.2d v. [234 712] of ; [256 977) County 1 Cal.2d P.2d v. 70 Marino 4 of ; Tuolumne, 118 Anderson v. Cal.App.2d 675 P.2d [258 540] 75|.) County Joaquin, San 110 703 P.2d Cal.App.2d [244 prove testimony persons Even affidavits of third offered not jurors impeach admissions are coun the verdict Ltd., (Noble Key Cal.App.2d 10 132 System, tenanced. v. fact, 887].) are to the P.2d In the authorities uniform [51 concurring or effect that or oral evidence of either affidavits contradict, dissenting jurors may impeach received to verdict, was except defeat their to show that the verdict Co., (Crabtree secured v. Western Pac. R. chance. ; Gray, Cal.App.2d 4 App.2d Johnson v. P.2d [90 835] ; Nunes, Cal.App.2d P.2d P.2d Toomes v. 575] ; Patterson, ; Phipps P.2d Cal.App.2d 437] Robinson, Gray 194].) P.2d Cal.App.2d 177 [91 In view of the settled law this state as announced foregoing it is difficult for me authoriites to devise a means or whereby appellant method could have made a show- ing prejudice to his case as the result the admittedly ruling erroneous against the trial court him. The record discloses that he statutory right was denied his to the exercise peremptory of a challenge. majority This the concedes. The jury verdict was him notwithstanding the conceded fact that the evidence support sufficient verdict in his possible Since it was not favor. under the rules of law above announced for appellant to have showing made place as to what took room or the state of mind juror sought challenge, he it is obvious that there no law basis in or fact for the statemеnt of the majority required appellant make showing affirmative prejudiced that he was of the as the result error committed by the denying appellant trial court in statutory right challenge question peremptory to exercise the here in order to obtain a reversal judgment. In view of the foregoing it is approach obvious majority problem here wholly involved is un- If majority right realistic. case, in this then a trial may judge announce at beginning any the trial or at during time trial neither party may exercise challenge, peremptory although an exception is taken to ruling either or parties both impose seek to peremptory
challenges right and are denied the to do court, so hold court could that since there is no showing preju- *21 by party rendered,
dice a against the verdict was whom the judgment abrogating affirmed, thereon must rendered be thus challenges jurors peremptory the allow statutes which to right I a matter of in civil criminal cases. both every lawyer doubt no that will be shocked to learn trial of that such is the law this state. majority opinion sup-
None of the in the authorities cited of ports expressed point. the view In none therein this right a party per- those cases was denied the to exercise a challenge emptory admittedly right impоse where he had the to challenge the It there is such as in at is true that ease bar. language in to the effect that some loose some those cases party challenges ruling where a the of the trial court with respect qualifications the he an juror, to a must make showing ruling that of the trial court was affirmative him, holding cry prejudicial to but is a far this that arbitrarily statutory party denies where the trial court a in right peremptory challenge, he must some exercise a by majority opinion in here nor manner not disclosed cited, showing preju- an make affirmative authorities judgment a reversal of a entered dice order obtain right. party denied adverse to such a verdict error prejudicial committed Because trial right denying statutory their a plaintiffs per- court firmly challenge and I believe that emptory because contrib- not, be, nor should it a utory negligence is defense in a ' action, would reverse judgment. I wrongful death ’ 4, rehearing petition a was denied for November Appellants J., Carter, J., Traynor, opinion were of that 1955. J., granted, Carter, be filed the should fol- petition lowing opinion: has
CARTER, majority of this court modified J.—The its rehearing notwithstanding in this case a denied opinion and rehearing pointed petition for out that never faсt state held appellate court this denial has an before challenge is mere peremptory error right to exercise application cured may be procedure VI of the Constitution California and of article section 4V2 holding contrary were not even numerous cases appellant for opinion. As counsel majority in the mentioned long rehearing petition their there is point out opinions of this court and the of well line considered unbroken right squarely holding Appeal District Courts qualified by absolute, and not challenge peremptorily rule reannounced as showing injury. This necessity of Diaz, People v. July 27th, 1951 in the case late as (hearing by denied 690, P.2d App.2d [234 vote) dissenting where the District Court court without right peremptory chal The denial of the Appeal said: procedure. matter lenge be said to a mere cannot 532, Helm, right (People is absolute. v. been said that right.
P. It has It a substantial 99].) safeguards of a defendant one of the chief it is ought permit conviction and that the courts unlawful Legis limitation fixed its exercise within the freest 7].) (People Edwards, 101 Cal. lature. Hayes Supreme As Missouri, of the United States said Court 580], 30 L.Ed. U. S. S.Ct. experience means the most shown one *22 effective of persons is the exercise jury to be there the box free unfit from abridged may be challenge. right peremptory the The of right the runs Arbitrary abridgment or denial of denied. or integrity and maintenance principles vital counter to to the jury.” system right by of of of trial the a constitutional (Emphasis added.) decisions, cited quoted
Numerous other the decisions Diaz, dogma that People supra, a reiterate as constitutional v. challenge is jury system, right peremptory our under the to ‘1 right part of inseparable absolute and an inalienable and by jury guaranteed by of trial Constitution.” majority recognized principle this court has theory, just effectively practice. but has denied it in
Upon
authority
Estorga,
of People v.
In
section
of
article
Constitution,
applies
procedural
the California
to
de-
law,
fects, and not
errors of substantive
to
this
court
precedents
in effect overruled a number of
of this court
holding directly
contrary,
provisions
to
of section
VI,
41/2,
Constitution,
apply
article
California
do not
where
right
рeremptory challenge
abridged.
has been
People
Carmichael,
62],
In
v.
210 VI, Constitution, court, referring to of article section 4% declared, page by “It never provision 547: was this intended of the constitution take from defendant a criminal right jury action his or in to a trial fundamental sub Wismer, abridge right. (People stantial manner v. Cal.App. 259]).” P. [209 People Wismer, In Cal.App. 259], v. P. after the defendant peremptory challenges, had exercised all of his compelled accept disqualified he juror by who ‘‘ held, reason of actual page bias. The 687: court Section VI application article no the constitution has 4% presented by jury situation right here. The trial is funda- right mental —a which came to us law and common guaranteed by as such inseparably the constitution —and con- (indeed, thereof) very nected therewith it is of essence right jury consisting to a trial unbiased and unprejudiced persons.” Bennett, People stated,
In Cal.App. page the court always that, P. : “And it should remembered case, any the trial of a criminal act action a trial necessarily denying court which must have the effect of impartial jury accused a trial fair will not be mitigated by excused or the terms section article 4% VI right the constitution. The trial is funda- ’’ mental. O’Connor, In People Cаl.App. 630], right defendant was denied exercise the number peremptory challenges to which he was entitled under the statute. It was contended section VI article 4% said, applied. The page court 520: generally “As defined ‘procedure’ meaning includes its whatever embraced terms, pleading, evidence, practice. the three technical *23 (32 Cyc. 405.) no Had there been the denial of exercise any peremptory challenges, of seriously question we whether any application this section has to the cause before us. This section pleading procedure, must refer to as authorized by Thus, codes. applicable the to make it pleadings, any had there been in affecting defects the informations not rights then, of parties, by the substantial law, the as accorded case, Likewise, and in that the error should be held harmless. procedure the court omitted to follow the embodied arraignment codes for the of and trial the defendants against the informations filed them and some had committed doing, error in so which did not rights affect the substantial procedure in would likewise parties, of such error then bid, reasonably harmless, it be held that be cannot section held meaning permit as to VI in its article is so broad 41/2 of ordinary procedure in disregard the usual and to trial court entirely adopt a new and a cause and the trial different recognized a course not a law. Such manner procedure. What procedure; it is a substitution mistake in not procedure in would and could excuse a mistake ivould unprovided a course held to allow the creation not be thing; entirely is an one a substitution law. Mistake is added.) thing.” (Emphasis different abundantly clear from above cited authorities that It is 4y2 VI, procedure, since it relates to no article has section right peremptory challenge where the has been application Yet, majority here, with. without citation interfered authority support position simply in of its holds that because polled were and were jurors unanimous their verdict” "the right denying appellant his exercise peremp- the error tory challenge cured section of article VI of 4% majority at arrives this conclusion even Constitution. produced that the evidence on though it concedes behalf amply support judg- sufficient to a verdict appellant in his favor. ment question that, appears no so far
There can be whatsoever majority opinion, face of the conclusion from the justice on miscarriage of resulted was not based a review no solely ground the ease but evidence all showing juror no affirmative who there was course, or otherwise unfit. Of served was biased is obvious my dissenting the authorities from a consideration cited showing filed in heretofore this case that such a would opinion virtually relating in view of impossible the law majority of verdicts. But not does unimpeachability argument, blindly pro- invokes but attempt to meet VI of of article the Constitution because of section visions 4% verdict in favor defendant. jury was unanimous its majority appre- do holding, it is obvious that the In so challenge. right peremptory significance ciate the always very challenge existed our law0and has a This litigant It remove from the salutary purpose. enables the juror who has to disclose his prospective failed box may possess deep prejudices who seated state and mental true juror prospective litigant ease right remove dire examination. The on voir admit will not *24 juror, prospective disclosing such a reason without there- right for, guaranteed by a basic fundamental statutes recognized this is known lawyers state and all trial to important safeguards against be one of most the selec- disqualified jury duty they tion those for who are because possess рarty exercising a of mind adverse state challenge which" be voir dire cannot disclosed examination. assumption majority juror The prejudiced one bring against party could not about a unanimous verdict a satisfactory in the face of evidence in his when he favor has right challenge juror, been denied to prejudiced is not theory practical experience. borne out either Those who experience jury have had appreciate the trial of eases importance eliminating juries pre- those have who conceived as result regard- notions to what should be reached evidence, many less of the tales been have told and more jurors remain untold of how or two one overzealous brought weight about a verdict of the evidence. In I repeating this connection refrain from cannot the warn- my ing I so often heard from venerable father one rotten will apple spoil applied the whole barrel. While this was to boy community, just applicable an occasional bad it is as jurors groups. or other small judicial system It is jury traditional our selected try impartial. a case be fair Legislature should The prescribe system has endeavored to for the selection of juries nearly possible guarantee which will as litigants jury composed impartial persons. fair and This court unanimously held system this case provided Legislature for juries the selection of was not followed departure case. this That there was a substantial from the system question. prescribed so there can be being no Such case, plaintiff type accorded the trial guaranteed by majority the laws of this state. concedes only way was error. There is one cure' this error grant plaintiff a that is to new To trial. do otherwise is deny plaintiff equal justice and exact to which he is entitled, by jury impartially verdict of selected, which principles Thomas Jefferson declared to one of the bright gone “form the constellation which has before us.” (First Address, 4, 1801.) Inaugural March Am.Jur. notes adds § Idaho and Oklahoma. Corpus Juris Secundum “In states the rule thus: the absence of applicatory rule, changing contributory negligence statute such as by good would have barred an a action decedent is defense to action (25 60.) 46; 1140, for his death.” C.J.S. see § also cases cited under note Jurisprudence phrases American “In the rule follows: an action defendant, wrongfully by negligence general for death rule injury resulting caused of the negligence proximately contributing is that of the deсedent recovery in death bars in favor of the beneficiaries for they thereby. the loss have sustained This is true even where death of by duty the deceased results from the violation the defendant aof imposed upon prescribing duty him statute where the statute does Am.Jur, (16 130.) 88-89, not exclude such defense.” § 200 (1907), 10, ; Power 152 13 P. v. Young Co. Cal. [92 62] (1920), 375, 369, ; Southern Co. Pac. 182 Cal. 383 P. [190 36] Ry. (1921), 520, Read v. 185 523 Elec. Cal. Co. [197 Pacific 828, 791]; (1954), P Cal.App.2d v. Beavers 832 Carroll (1916), ; Co. P. see Dickinson v. Southern Pac. also [273 56] ; Mammoth Channel G. P. Crabbe 183] ; 500, Min. Co. Cal. 504-506 P. Cal. 41.) 988-989, (prior to Jur. And in 1901 abolition § 796) 1911, p. doctrine this state Stats. fellow-servant Williams, 455, Hedge was declared death had Am.St.Rep. 366], if the P. deceased, negligence been caused a fellow servant against employer. then heirs could not recover (since Procedure, Meanwhile Code of Civil section 377 1872) has been three enactment amended times. In 1901 (Stats. 126) 1901, p. provision person added if the causing employed responsible death “is another who is conduct, for his could be then” action maintained “also (Stats. 460) 1935, p. person.” such other In 1935 “of a the section was extended to cover the person surviving who him either husband or minor leaves By the next most recent wife or child children.” made, (Stats. 1949, §4) provision was ch. amendment things, in case among for survival of the action of death other time, however, contributory no feasor. At the tort gen abolished as a It been defense. erally adopting legislation accepted principle existing knowledge of presumed to have had Legislature is
Notes
notes (Emphasis Judge ...” Nourse himself. nothing “It is clear that section which there another, one, through negligence injured allows who liability escape injured person because someone other than the negligence what injury. Yet this is contributed permitted plead when occurs a defendant tortfeasor is negligence wrongful of the decedent an action for It upon Civil founded Section 377 of Code Procedure. loss, pecuniary is the heirs who have suffered decedent who persons injured by are the act of the tortfeasor. Certainly it cannot be said the widow and minor children negligence have, a man killed of another ‘ 1714, wilfully ordinary Section words of brought want of care added.) injuries’ (Emphasis themselves.” Judge given Nourse notes that the for the reasons defense contributory negligence appli in the decided cases have no Fujise Quoting cation for action death. Co., Angeles Ry. 317], Cal.App. Los 211 [107 contributory negligence it appears that “In order that shall recovery damages personal injury, prevent the it must injured appear person that of