244 P. 1077 | Cal. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *292
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *293 This appeal is taken upon a bill of exceptions from an order granting defendants' motion for a nonsuit. The plaintiffs — being respectively the husband and married daughters of the decedent, Anna Bishop Rabe — joined in the above-entitled action to recover damages for the alleged wrongful death of said Anna Bishop Rabe, which occurred April 22, 1922, as a result of injuries inflicted upon her April 3, 1922, by being struck by a bicycle which one Nick Sanseverino, an employee of the respondent Western Union Telegraph Company, a corporation, was riding and directing while engaged in the discharge of his duties as a deliverer of telegraphic messages for said respondent corporation.
The complaint, which contains an allegation that "the said plaintiffs are the only heirs of said deceased," was drawn, and the action was maintained, upon the authority of section 377 of the Code of Civil Procedure, providing, "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if said person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as under the circumstances of the case may be just."
In our consideration of the evidence as to its sufficiency to pass a motion for a nonsuit, it must be borne in mind that we are required to conform to the well-established rules frequently announced by this court. Gregg v. WesternPacific Ry. Co.,
"`Every favorable inference fairly deducible and every favorable presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiff. Where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view most favorable to the plaintiff. If contradictory evidence has been given it must be disregarded. (Estate ofArnold,
With the foregoing rules in mind, we proceed to a statement of the facts as disclosed by the record. The decedent was a woman sixty-two years of age and in normal health. She was visited on April 3, 1922, at the home of herself and husband in the city of Los Angeles, by her daughter, Mrs. Alexia Valentine, and the latter's three year old child. The daughter upon taking her departure was accompanied by the mother to the northwest corner of Kohler and Seventh Streets, at which point the former was to board a west-bound Kohler Street car and the mother was to return to her home. Seventh Street extends in an easterly and westerly *295 direction and Kohler Street extends in a northerly and southerly direction. The latter street does not continue across Seventh on a direct line at its point of entrance from a southerly direction. The easterly boundary line of Kohler Street south of Seventh Street, if projected northerly, in its continuation, would form the westerly boundary line of Kohler Street north of Seventh Street. In other words, the exterior lines of the northerly and southerly sections of Kohler Street, as each enters Seventh Street, are out of line and form what is commonly called a "jog." The mother and daughter, in going from the former's home to the point where the latter was to take the street-car, traveled upon the westerly side of Kohler Street and crossed Seventh Street at an angle to the northwest corner of said street, it being the place where the street-cars discharged and received passengers. The mother, daughter, and child remained upon the sidewalk for some ten or twelve minutes before a car arrived. As it approached the daughter and her said child went into the street to board it. What period of time the mother, who had to recross Seventh Street in order to return to her home, remained upon the sidewalk after the daughter started to board the street-car, was not told by any witness, and it can only be approximated by physical facts and the sequence of events. Mrs. Valentine, who was also accompanied by her child, in crossing from the sidewalk to board the street-car, was "brushed" by the passing bicycle shortly before she reached the car. It passed her going at a swift rate of speed and the wheel brushed her dress in passing between her and the sidewalk. Her testimony is that it "whizzed" by her as fast as it could go. She was not aware that the mother had been struck or run into by the bicycle until a few seconds later when her child saw the mother lying in the gutter near the north curb line not far from where she had left her standing. The mother was picked up in an unconscious state and did not regain full consciousness at any time thereafter. She sustained a fracture of the skull which resulted in death.
On the evening of the injury the sun set at 6:15. There is evidence in the record which would require us to hold, under the rules above announced, that decedent was struck as late as 7:15. There is no question but that it was later than 7 o'clock. The bicycle carried neither front *296
nor rear light, nor lamps, nor reflex mirror of any kind as required by the provisions of section 13, subdivision (b) of the state Motor Vehicle Act (Stats. 1919, p. 191), to be carried by a bicycle one-half hour after sunset, and the messenger was clearly guilty of a violation of the mandates of said act in this respect. The meteorologist in the United States Weather Bureau at Los Angeles testified that at the time the injuries were inflicted the sky at and in the vicinity of Los Angeles was entirely overcast with stratus clouds — low clouds. It was not a foggy night so as to obstruct the view of the street if the lamps were burning, but an ordinary cloudy condition prevailed. The deceased when first observed upon the street was approximately thirty feet westerly from the northwest corner of Seventh and Kohler Streets, lying in the gutter near the outer edge of the sidewalk. No negligent act on her part was testified to by anyone nor can such be inferred from any fact or circumstance disclosed by the record. Negligence cannot be presumed but must be proved. On the other hand, the employee and agent of the respondent corporation was guilty of negligence per se (Mora v.Favilla,
The second branch of the case calls for a consideration of the proceedings and the final ruling which followed a motion made by plaintiffs for leave to amend the complaint by bringing in two heirs of the decedent who had been omitted from the action. These omitted heirs were grandchildren, *298
one a son of a deceased son and the other a son of a deceased daughter. The father and mother of said children, respectively, had predeceased Anna Bishop Rabe by many years. Said deceased daughter left surviving a son who had not been heard from for a period of more than four years and none of the other children of decedent or members of the family knew whether or not he was then living. The other heir was in all probability living. Both of said grandchildren of decedent, if living, would have passed their majority at the time of the grandmother's demise. It appears that neither was at any time dependent upon or had at any time enjoyed the bounty of decedent, or had ever been a member of her household. The existence of other heirs than those joined in the action was drawn out on the cross-examination of appellant Alexia Valentine early in the trial. No action whatever was taken or objection made by defendants as to the nonjoinder of said two grandchildren. Some time after the facts had been elicited, as above stated, plaintiffs asked leave to amend by bringing them in as plaintiffs and it was against the granting of their motion that defendants entered their protest. Defendants confined themselves solely to objecting to the motion to bring in said heirs. The court reserved its ruling on the motion until all of plaintiffs' evidence had been put in. It thereupon denied the motion to amend and granted the motion for a nonsuit. The omitted heirs were, according to the rules of consanguinity, one degree further removed from the common ancestor than the surviving daughters and the parents of each of said omitted heirs had been dead for many years prior to the decedent's death and the family contact and association as between the decedent and them had long since become severed. It is not strikingly strange that such an oversight should have occurred. No claim is made that said heirs were fraudulently omitted or that plaintiffs were guilty of bad faith in any sense by reason of said omission. The evidence in the record tends to show that said omitted heirs did not sustain any substantial pecuniary loss by the death of the decedent and if this is so, there could have been no substantial recovery in favor of either. (In the Matter of the Estate ofRiccomi,
Nothing is said in Salmon v. Rathjens, supra, or in the other cited cases, which may be taken as an intimation by this court that an heir, who through mistake, misfortune, or neglect has been omitted as a party from the original complaint, cannot, under any circumstances, thereafter be brought in by amendment. That case emphasizes, as do others, the fact that the action permitted under section 377 of the Code of Civil Procedure is statutory and a single cause of action is given and the action should be brought in the names of the persons to whom the right of action is given by the statute. But in none of the decisions is there an intimation to the effect that a complaint which omits heirs is not amendable. Such of our decisions as touch the question at all take it as a matter of fact that the complaint is subject to amendment under the same general rules which govern pleadings generally. It is the settled law of this *300
state that motions to amend pleadings to the end that justice may be promoted are to be liberally granted. Especially should liberality be exercised in favor of allowing the amendment where, as in the instant case, the amendment would not state a new or different cause of action from that attempted to be stated in the original complaint. (Barr v. Southern California Edison Co.,
There is no merit in the contention that the amendment would have substituted a new and distinct cause of action for the one pleaded. This contention has been put at rest by many decisions of this state, a few of which are: Cox *301
v. San Joaquin Light Co.,
For the foregoing reasons, the order granting the nonsuit is reversed with directions that the plaintiffs be allowed to amend their complaint by bringing in the omitted heirs, either as plaintiffs or as defendants, as they may be advised.
Lawlor, J., Richards, J., Shenk, J., Waste, C.J., and Curtis, J., concurred.
