ness, the defendant's attorney offered to ask her about her testimony at the coroner's inquest on the same subject. Objection was made that the answer was not impeaching and did not tend to explain the surprise. The objection was sustained. There was no error in this ruling. Her testimony at the coroner's inquest was a more condensed statement than her testimony on the trial, but was not essentially different therefrom,

The court gave the following instruction: [9] "It was not only the duty of the defendant to construct its power line leading to the mill on the Robinson premises in a safe, substantial manner, but also to keep it in such condition by constant oversight and repair."

The defendant urges that under this instruction the jury would be required to find the defendant guilty of negligence unless the power line was built and maintained so that it would be absolutely safe against injury from the escape of electricity. If the instruction had been standing alone it possibly might have been so understood. But the court instructed the jury very elaborately to the effect that the defendant's duty was discharged when it had used due care to make the line safe from injury to others, and that due care required that the wires be so placed with reference to other conducting agencies that dangerous contact would not be probable. These charges were repeated several times and the jury could not have failed to understand that the care required of the defendant was the reasonable care required by the circumstances and the character of the agency under its control.

The defendant complains of many rulings of the court in addition to those above noticed. We do not think any of them are of sufficient importance to justify us in mentioning them.

At the direction of the court the jury returned a verdict for separate damages to each plaintiff, giving two thousand dollars to each of them. The defendant excepted to the instruction which directed the verdict in that form, but the record does not show that any objection was made when the verdict was returned, or at any time afterward in the court below, except by the specification that the verdict was against law, in the notice of intention to move for a new trial. The specifications in the bill of exceptions stating the particular reasons for the claim that the verdict was against law do not

mention this cause as one of them. There is no specification, and no claim, that the evidence is insufficient to justify a verdict for four thousand dollars or two thousand dollars to each or either of the plaintiffs, nor any claim that the damages are excessive.

[10] The law does not authorize a verdict in this form. The action by the heirs of a person to recover damages for his death is authorized only by section 377 of the code. That section does not authorize separate actions by the several heirs. "So far as the heirs are concerned, a single joint cause of action is given. The language of our statute permits no other construction." (Salmon v. Rathjens, 152 Cal. 294, [92 Pac. 733].) So it is held that in computing the damages "the loss of each and all must be considered. The statute does not provide for a distribution among the members of the family who take as beneficiaries of the statute. . . . It is not intended that the amount recovered shall be divided into integral or proportional parts. The persons entitled do not take as heirs or by succession, but as beneficiaries of the statute; the statute being framed upon the theory that the heirs will always constitute the family of the deceased." (Simoneau v. Pacific etc. Co., 159 Cal. 494, 508, [115 Pac. 320]. See, also, Daubert v. Western Meat Co., 139 Cal. 480, [96 Am. St. Rep. 154, 69 Pac. 297, 73 Pac. 214].) The verdict should have been given for a lump sum to all the plaintiffs, including, of course, the damages to each of them. [11] But we are unable to perceive that any injury has been suffered by the defendant on account of the verdict having been rendered in this form. It is said that the plaintiff, Lyda Robinson, took an appeal from the judgment. It is also said that this appeal was dismissed by her without any decision on appeal. Neither of these statements is denied by the other party. It is possible that complications arising from an appeal by one of the plaintiffs in such a case would require a reversal of the case because of the separation of the damages by the verdict and judgment, but as it is conceded that the appeal has been dismissed no injury could arise therefrom. The defendant has no interest in the division which the plaintiffs may make among themselves, or which may be made for them, of the damages recovered. The statute contemplates a single recovery for the benefit of the family of the deceased or those of his heirs who are de

pendent upon him for support. Whether it is divided among them after recovery or not, or how it is divided, are matters of no concern to the defendant. If the damages are not excessive, as is in effect admitted by the failure to object on that account, the defendant has no reason to complain, or at least his reason is not sufficient to warrant a reversal of the judgment, because of this defect in the form of the judgment. The judgment is affirmed.

Olney, J., Lennon, J., Angellotti, C. J., Lawlor, J., Wilbur, J., and Sloane, J., concurred.

[L. A. No. 5884. Department One.-November 29, 1920.] EDNAH W. MARPLE, Respondent, v. C. E. JACKSON, Sheriff, etc., Defendant; FREDERICKA L. BLACKBURN et al., Appellants.

[1] HUSBAND AND WIFE-DELIVERY OF DEED-EVIDENCE-TESTIMONY OF HUSBAND.-In an action by a wife to enjoin a sale of real estate under an execution against her husband on the ground that the property was her separate property, the husband cannot, without her consent, in view of subdivision 1 of section 1881 of the Code of Civil Procedure, be examined by the defendants regarding the delivery of the deed from the husband to the wife under which she claimed the separate ownership of the property. [2] ID.-ACTION TO ENJOIN EXECUTION SALE-DELIVERY OF DEEDIMPLIED FINDING.-Where in an action by a wife to enjoin a sale of real estate under an execution against her husband the complaint alleged that she was the owner of the property by virtue of a certain deed made by her husband to her, a finding that all of the allegations of the complaint were true implied a finding that the deed was duly delivered.

[3] DEED-DATE OF DELIVERY-PRESUMPTION.-Under section 1055 of the Civil Code, a deed duly executed and acknowledged must be presumed prima facie to have been duly delivered on the date it bears.

[4] ID. DELIVERY-PRESUMPTION NOT OVERCOME.-The disputable presumption that a deed duly executed and acknowledged was delivered on the date it bears was not overcome by the evidence in this action.

[5] HUSBAND AND WIFE-VALIDITY OF DEED AS AGAINST HUSBAND'S CREDITORS-NONESTOPPEL OF WIFE.-A wife is not estopped as against judgment creditors of her husband from claiming that certain real estate deeded by him to her is her separate property, and not fraudulent as to creditors, although the deed was not recorded for several years after its execution, where the judgment was not obtained through any transaction in which the creditors relied upon the husband's ownership of the property, but in an action for damages for personal injuries.

APPEAL from a judgment of the Superior Court of Orange County. W. H. Thomas, Judge. Affirmed.

The facts are stated in the opinion of the court.

Elmer I. Moody and Porter C. Blackburn for Appellants. Tanner, Odell & Taft for Respondent.

LAWLOR, J.-This is an appeal by the defendants, Fredericka L. Blackburn and Oliver V. Blackburn, her husband, from a judgment in favor of the plaintiff, Ednah W. Marple, in an action to enjoin the sale under execution of certain real estate situated in Orange County, alleged to be the separate property of the plaintiff. The record on appeal is presented in typewriting.

On April 20, 1916, Mrs. Blackburn secured a judgment in the superior court of Los Angeles County against plaintiff's husband, R. S. Marple, in the sum of $1,028.95. On July 6, 1917, execution was issued on the judgment, directing C. E. Jackson, sheriff of Orange County, to levy execution upon these premises. It is the sale of the property under this execution which respondent here seeks to enjoin. She bases her claim of title on a deed from R. S. Marple to her, which recites that it is made in consideration of love and affection. This deed bears the date, May 12, 1906, and was acknowledged on that day, but was not recorded until February 14, 1916. Appellants denied that the premises were the separate property of respondent, and alleged that they were the separate property of R. S. Marple, basing their claim on the grounds (1) that the deed from Marple to respondent was void for want of delivery, and (2) that, as a voluntary transfer made without valuable consideration, it was made by Marple in contemplation of insolvency and with the inten

tion of defrauding his creditors. The cause was tried by the court which found inter alia that all the allegations of the complaint were true, and, as heretofore noted, rendered judgment in respondent's favor, adjudging that the premises were her separate property and restraining appellants from proceeding with the levy of the execution upon said premises. 1. At the trial respondent introduced in evidence the gift deed and rested. Appellants thereupon called respondent and later her husband as witnesses. After the latter had answered some preliminary questions respondent objected to his examination regarding either the delivery of the deed or the surroundng circumstances on the ground that, under subdivision 1 of section 1881 of the Code of Civil Procedure, "a husband cannot testify against his wife." The objection was sustained, and appellants' first contention is that this ruling was erroneous.

Subdivision 1 of said section reads in part: "A husband cannot be examined for or against his wife without her consent; nor a wife for or against her husband, without his consent; nor can either, during the marriage or afterward, be, without the consent of the other, examined as to any communication made by one to the other during the marriage."

In People v. Langtree, 64 Cal. 256, [30 Pac. 813], the defendant was charged with burglary. In discussing the question whether the court erred in excluding the testimony of a Mrs. Brandon, which testimony tended to establish the innocence of the defendant and the guilt of the witness' husband, it was said, after quoting the above code section: "This is the provision of the code upon the subject, and it must prevail. . . . 'A wife cannot be examined, for or against her husband, without his consent.' . . . If examined in an action or proceeding to which he was a party, she would undoubtedly be examined for or against him. Any witness examined in an action or proceeding is examined for one party and against the other therein. . . . If the husband of this witness had been a party to the action on trial, she could not have been examined at all without his consent.”

We quote from Fitzgerald v. Livermore, 2 Cal. Unrep. 744, [13 Pac. 167]: "The wife of the plaintiff was called as a witness for the defendant and gave testimony against the plaintiff without his consent. Her testimony was material. We think the evidence was incompetent."