the defendant struck the deceased on the head | vanced by the defendant, that the court erred with the hose, and still there stands unim- in refusing to permit a certain declaration of peached in the record Hughes' testimony the deceased as to the assault to go before which, if believable, is amply sufficient to sus- the jury. tain the verdict. His testimony is not upon [3] 2. The contention is that the time for its face improbable. The fact that he is a the commencement of this action began to brother of the plaintiff obviously, does not run from the time the deceased received the make it so. It might have entered into the injuries which, it is alleged, caused his death, question of his interest in the case in behalf and that, when this action was instituted, of the plaintiff, and thus his credibility and more than one year had elapsed since the inthe weight of his testimony affected, but this juries were received; section 340, subdiviwas for the jury to resolve. The latter hav- sion 3, providing, among other things, that ing evidently, and, indeed, presumptively, be- an action for injury to or for the death of lieved his testimony as to the circumstances one caused by the wrongful act or neglect of of the assault, as well as the testimony of another must be brought within one year Drs. Barr and Powell as to the cause of from the time of such injury or death. The Marks' death, it is manifestly not for a court theory involved in the demurrer on the speof review to say, in view of the character of cial ground necessarily is that the right of said testimony or the face value thereof, that action which the plaintiff is here claiming is the conclusion arrived at by the jury was not precisely the same or identical action which justified, notwithstanding that the record | accrued to the deceased by reason of the indiscloses that a number of other persons, jury suffered by him from the alleged wrongclaiming to have witnessed the assault, gave testimony which, if accepted and believed by the jury, would certainly have had the effect of completely destroying its evidentiary force and value. There is, as seen, real and substantial evidence in the record on the material point in the case to support the verdict, and this is all that is required to foreclose interference with the verdict on the ground that it was not justified by the proofs. Driscoll v. Cable Railway Co., 97 Cal. 533, 562, and 567, 32 Pac. 591, 33 Am. St. Rep. 203; Clopton v. Clopton, 162 Cal. 31, 121 Pac. 720; Lummer v. Unruh, 25 Cal. App. 102, 142 Pac. 914; Hecker v. Morley, 170 Cal. 88, 148 Pac. 516; Clark v. Tulare Dredging Co., 14 Cal. App. 414, 429, 112 Pac. 564. It may be added that, since the answer of the defendant set up, as a defense to the action, the fact that the defendant struck the deceased as in necessary self-defense or to protect himself against threatened personal injury on the part of the deceased, the burden rested upon the defendant to establish that defense (Brooks v. Haslam, 65 Cal. 421, 4 Pac. 399; Chapell v. Schmidt, 104 Cal. 511, 38 Pac. 892), and the jury were the exclusive judges of whether this burden was sustained. The other assignments of error involve the rulings of the court upon the evidence, certain instructions embraced in the court's charge and the ruling disallowing the demurrer on the ground that the action was barred by the terms of subdivision 3 of section 340 of the Code of Civil Procedure. The latter proposition, although the last assignment of error discussed in the briefs, may first be appropriately considered, since it goes to the question whether the plaintiff's action was lost by lapse of time. Moreover, the principle to be considered and applied in the determination of the question whether the action was brought after it was barred under the statute has direct relation to and will govern in the decision of the point, ad ful act of the defendant. The theory is plainly erroneous. The right of the deceased to maintain, in his lifetime, an action for the damage, if any, sustained by him at the hands of the defendant, and the right of the heirs or personal representatives of the deceased, after the latter's death as the result of such injury, to maintain an action for the death of Marks so caused, are two entirely different rights. Obviously, the right of the deceased to maintain an action for damages for the injuries received necessarily expired with his death. "Actio personalis moritur cum persona." And but for the law giving to the heirs or representatives of the deceased the right to sue for such damages as they may have sustained by reason of the death of Marks through the alleged wrongful act of the defendant, the latter (Marks having died before bringing any action) would be wholly immune from any action or the consequences thereof of a civil nature. Our law (section 377, Code Civ. Proc.), giving the heirs or personal representatives of a deceased person a right of action for his death, wrongfully produced through the act of another, was not known to the common law. It is purely a statutory right—a right with which, very clearly, the person for whose death the action may be maintained could possibly have no concern. It ought not to be necessary to say that the right does not, and in the very nature of things could not, under any possible view, exist during or in the lifetime of the person wrongfully injured, for the very fact of his death from wrongful violence at the hands of another itself or alone creates or establishes the foundation for the exercise of the right to sue for any damages suffered by his heirs, etc., for his death so caused. To hold, as the learned counsel maintains, that the right of action after death is only the succession in the heirs or personal representatives of the right as it existed in and belonged to the deceased before his death what was said in the English case of Blake v. Midland Ry. Co., 18 Q. B. 93: "We agree with what is said in the opinion above quoted that the action given by the statnot the transfer to the representative of the ute (section 377, supra) is a new action, and right of action which the deceased person would have had if he had survived the injury”—citing a number of English and American cases. would be to hold that the right of action in the heirs lies solely in the damages suffered by the deceased by reason of the injuries received. This would involve a most unreasonable view of section 377. As stated the damage for which the heirs or personal representatives of a deceased whose death has been caused by the wrongful act of another may maintain the action authorized by said sec- See, also, Lange v. Schoettler, 115 Cal, 388, tion lies necessarily in the fact of such death. | 390, 47 Pac. 139; Burk v. Arcata & Mad River What damage, in law, could a person himself R. R. Co., 125 Cal. 364, 366, 367, 57 Pac. 1065 suffer by reason of his own death caused by the tortious act of another? Obviously, no damage whatever. But the language of the section mentioned is itself plain and simple enough to show that the intention of the Legislature, in enacting'it, was to give to the surviving heirs of the deceased who may themselves be damaged by his death in a wrongful manner the right to sue for compensation for the damage so sustained. The section reads: "When the death of a person, not being a minor, is caused by the wrongful act of another, his heirs or personal representatives may maintain an action for damages against the person causing the death," etc. [4] Nor does the fact, if it be a fact, that the deceased did not bring an action in his lifetime for the damages occasioned to him by the injuries inflicted upon him bar the right of the heirs or personal representatives of the deceased to exercise and prosecute their right of action under section 377. The above views accord with the authorities. We quote the following from Tiffany on Death by Wrongful Act, § 23: As 73 Am. St. Rep. 52; Gregory v. S. P. Co., (C. C.) 157 Fed. 113; Webster v. Norwegian Mining Co., 137 Cal. 399, 70 Pac. 276, 92 Am. St. Rep. 181; Western & A. R. Co. v. Bass, 101 Ga. 390, 30 S. E. 874; Causey v. Seaboard Air Line R. Co., 166 N. C. 5, 81 S. E. 917, L. R. A. 1915E, 1185, Ann. Cas. 1916C, 707. [5] From the foregoing considerations it follows, of course, that the time for bringing an action of this character begins to run from the time of the death of the injured person, and not, as counsel for the defendant contends, from the time that the injury causing his death was inflicted upon him. The deceased died on the 1st day of May, 1912, and this action was commenced on the 23d day of April, 1913. The action was therefore brought within the statutory time, and the demurrer upon the ground that it was barred by the section named was properly overruled. [6, 7] 3. As stated, the next assignment of error involves a question closely akin to the proposition above discussed. It came about thus: The witness Mandry, for the defend ant, was asked by the latter's counsel about Ob We "It is manifest that the act did not repeal, or create an exception to, the rule of 'actio personalis moritur cum persona' by providing for the survival of the action which the party injured might have maintained, for, though the action can be maintained only when the death is caused under such circumstances as would have entitled the party injured to maintain an action, it is not maintainable for the recovery of the damages resulting from the personal injury to him, and hence, by survival, to his estate, but is maintainable only for the recovery of damages for the pecuniary loss resulting from the death to the surviving members of his family. Coleridge, J., said in one of the first cases that arose under the act: This act does not transfer the right of action to his representative, but gives to his representative a totally new right of action, on different principles.' It must be admitted that expressions occur in some of the opinions to the effect that the statute gives a substituted, and not a new, right of action, but, having regard to the provisions of the act in respect to the persons who are entitled to the ben- to maintain and prosecute an action in his efit of the action and the measure of damages, such a position is entirely untenable. Said Lord Blackburn, in Seward v. The Vera Cruz: 'A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived-an action which * is new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who, under such circumstances, suffers pecuniary loss.'" The Supreme Court, in Munro v. Dredging & Rec. Co., 84 Cal. 515, 524, 24 Pac. 303, 305 (18 Am. St. Rep. 248), said, referring to As above shown, the right of action asserted here by the plaintiff was not a right of action of the deceased. It arose independently of any consideration of the deceased's right lifetime for any damages he might have suffered because of the injury inflicted upon him by the defendant. The right of his heirs or representatives to maintain this action for his death and to support the same by evidence could not be destroyed by any compromise or agreement of release he might have made with the defendant while his right of action existed. Or, as the Supreme Court has recently said, referring to the action created by section 377-we quote the syllabus: "The right of action thereby created is a new right of action with a different measure of dam age from that which accrued to the injured person as the result of the defendant's wrongdoing, and a compromise agreement and release of the wrongdoer made by the injured person before his death is not a defense thereto." Earley v. Pac. Elec. Ry. Co. (Sup.) 167 Pac. 513. planation by the defendant of his reason for keeping in his saloon the piece of hose with which he struck the deceased: "I am out there, and I have no one's protection whatever, and I thought I had a right to protect my place there." Although we think the ruling was proper, the statement stricken out might have been allowed to stand without jeopardizing the rights of the plaintiff or contributing to the advantage of the defendant. The hose was in his saloon, and he ad festly, the fact that he kept it there to protect himself or that he was without protection except such as he might himself personally invoke when necessary could have no tendency to excuse his act in striking Marks. There was no claim in this case that he was anticipating trouble with Marks and his companions on the day of the difficulty or at any other time, and that he had procured the piece of hose for the special purpose of meeting such trouble or of assaulting Marks. The statement that he was without protection (presumably police protection) was clearly not, of course, justify him in taking the law into his own hands or in wrongfully assaulting another. By parity of reasoning, the declaration of the deceased after he received the injuries and before his death, that he was not struck and injured by the defendant, cannot be used for the purpose of defeating the heirs or representatives of the deceased in an action which is theirs and never his. The declara-mitted using it on the deceased, and, manition was not admissible under the rule allowing declarations of a deceased person against his pecuniary interest or that of his successor in interest (Code Civ. Proc. § 1853), for, as has been shown, he never had any interest in the present action or the subjectmatter thereof, nor are his heirs or representatives, in an action of this character, his successors in interest. Nor was it admissible as part of the res gesta. The whole theory upon which such declarations are excluded in a case of this character is, as above suggested, that the legal rights of the heirs or representatives of a deceased person seeking to recover for his death resulting from the wrongful act of another, while growing out of the injury causing the death, are independent of that fact and cannot be defeated or affected by anything the deceased can say or do. This proposition is clearly explained in the cases, among which we cite the following: Hedge v. Williams, 131 Cal. 455, 63 Pac. 721, 64 Pac. 106, 82 Am. St. Rep. 366; Pennsylvania Co. v. Long, 94 Ind. 250, 252; City of Bradford v. Downs, 126 Pa. 622, 17 Atl. 884; Louisville, etc., Ry. Co. v. Berry, 2 Ind. App. 427, 28 N. E. 714. irrelevant and immaterial. That fact would that he did not use the hose on the deceased [8] 4. The next assignment involves an attack upon the action of the court in striking out a portion of an answer to a certain question put to the defendant by his counsel. The defendant, after explaining that, when Fehr and Robinson were scuffling on the floor, he attempted to stop the fight, and said to the belligerents that he did not "want any trouble here," was asked by his attorney: "What did Marks do or say then?" to which he replied: "He said, 'You Dutch s▬▬▬▬▬▬n of a bh, if you don't let them have it out I will get you,' and I would have stopped it there if it had not been for Marks." The court, on motion, struck out the following portion of the answer: "I would have stopped it there if it had not been for Marks." The ruling is not erroneous. The portion of the answer stricken out involved the mere opinion and conclusion of the witness, and its vice was in its insinuation, without explaining or describing his acts or conduct so that the jury could have determined that question, that Marks was taking a hand inclusion of the witness. Undoubtedly the obthe trouble or encouraging it. [9] 5. Again, it is said that the court erred to the prejudice of the defendant's rights in the trial by striking out the following ex [12, 13] 7. The following questions to the defendant by his attorney were objected to as incompetent, irrelevant, immaterial, and leading, and the objection sustained: "Did you hit him or attempt to strike him until he first swung at you?" "Who made the first hostile demonstration there, Marks or you?" To the latter question the additional objection was made that it called for the con jections that the questions were leading in form and suggestive of the answer desired were well taken, and the exclusion of answers upon that ground, though a highly [15-17] 9. Relative to the complaint that the court erred in some of the instructions embodied in its charge to the jury, counsel for the defendant, in his brief, says: technical ground, was legally justified. Even | reputation, and not upon specific acts tending though the court could properly enough have to show a good or bad character which have allowed the questions to be answered and come under the personal observation of the should have done so, yet it is to be said that witness. the record shows that the defendant received the benefit of the testimony which they would probably have elicited; for, in another part of his examination, he was asked if he used the hose before Marks "swung at you," and he answered, and the answer was allowed to remain in the record: "No, sir; no, sir." This was the equivalent of saying that the deceased made a hostile or threatening demonstration toward him before he used the hose; and it was, furthermore, the equivalent of saying that he did not "hit him [Marks] or attempt to strike him until he [Marks] first swung" at the defendant. And there can be no doubt that the jury so understood the answer to that question. "Under this heading [Errors Claimed in Connection with the Giving of Instructions], we will group certain assignments of error which we deem it our duty to present and concerning which we make no waiver, as we believe they should be passed upon by the court, but in the discussion of which we can't indulge the same serted in thus far presenting this case." earnestness of conviction attempted to be as Thus it plainly appears that counsel himself is not seriously of the opinion that the There are, instructions to which he refers contain erroneous statements of legal principles, or [14] 8. Several witnesses were introduced that the principles so stated are not pertiby the defense to testify that the general rep-nent to the issues as made by the pleadings utation of the deceased for peace and quiet and developed by the evidence. was bad. While some of these witnesses, however, three instructions in the group after considerable questioning and repeated mentioned in the above-quoted statement. explicit explanations by the court of what One of these is to the effect "that there is no was meant by the term, "general reputation," legal presumption that a bodily injury,, if as it is understood in law, were made to say, therefor, if any, must be proven by him who any, is justifiable; and the justification on direct examination, that they were acquainted with the general reputation of the asserts it." We think the instruction, as apdeceased for the traits mentioned, and de- plied to this case, states a legally sound princlared it to be bad, on cross-examination it ciple. It simply means that, in a case of this was developed that they had based their character, where justification for the injury statement that his general reputation was inflicted is set up as a defense, the burden is bad in the respect mentioned entirely on their upon the defendant to prove the defense.' This is as we understand the law and have own observations of his personal conduct on occasions when the decedent was under the elsewhere in this opinion so declared. The influence of intoxicating liquor and not on learned counsel says that he has no fault to what the community generally had said of find with the second instruction included him. The court, upon motion, struck from within the group, and certainly we have none. It is therefore unnecessary to make the record all such testimony, and technically the court thus made no mistake. It is further reference to it. The third and last well understood, of course, that the purpose instruction embraced within the group, it is of testimony of the general reputation of a insisted, is not only erroneous, but was person in the community in which he re- prejudicial in its effect upon the defendant's sides and is known for certain traits is to substantial rights. It reads: prove that his character is good or bad, as the case may be. Proof of character in that manner involves an exception to the rule against hearsay evidence. It is not an uncommon circumstance that such testimony may itself have the effect of turning the scale on a vitally important question of fact involved in the issue to be decided. Hence the rule as to the mode of presenting such testimony or of proving character should, with substantial strictness, be observed, and to this end testimony of specific instances of misconduct, where bad character is sought to be shown, should no more be allowed than testimony of particular instances of commendable conduct, where good character is attempted to be established. In other words, testimony addressed to the question of the general reputation of a person as to certain traits of character should, as the law requires, be based upon and the result of the 13th day of March, 1912, the defendant, M. Reis"If you believe from the evidence that on the singer, without cause or provocation, wrongfully and negligently struck Harry Marks on the head with a piece of hose, and if you further believe from the evidence that as the result thereof said Harry Marks suffered from cerebral meningitis, and if you further believe from the evidence that after said 13th day of March, 1912, and prior to his death said Harry Marks contracted pneuimately concurred with said pneumonia in causmonia, and that said cerebral meningitis proxing his death, and that said death would not have occurred at said time from pneumonia alone, then I charge you that under such circumstances if such shall have been shown by the evidence the plaintiff in this case is entitled to recover, and your verdict must be in her favor and against the defendant." It is the portion of the instruction in italics to which the defendant objects. We perceive nothing wrong in the instruction. If the deceased would not have died when he did but for the cerebral meningitis caused by the injuries inflicted by the defendant, to recover, notwithstanding that pneumonia | pal is altered in any respect, or the remedies might have concurred with such meningitis or rights of the creditor against the principal in respect thereto in any way impaired or suspended-a building contractor's surety is discharged by the owner not complying with his duty under Code Civ. Proc. § 1184 (which statute must be read into the contract), when "stop withholding payment of unpaid installments; notices" are given, to protect the surety, by failing in which he was guilty of an act "which would naturally prove injurious to the remedies and this though the persons filing the "stop noof the surety or inconsistent with his rights," tices" recovered judgment against the owner. in proximately causing death. We do not understand the law to be that, to hold a party for his tortious act whereby he produces damage to or the death of another, such act must be the sole proximate cause of the injury or the death resulting therefrom. If such a rule were sound, then, where the distinct acts of two different parties had concurred proximately to cause injury to or the death of another, neither would be liable. In this case, as we have seen, the deceased was taken down with pneumonia, a dangerous malady, after he had been injured by the defendant. Now, if the evidence was such as to warrant the conclusion that the deceased would not have died when he did if it had not been for the development of cerebral meningitis from the injury to his head and brain inflicted by the defendant, then it follows that such meningitis was at least a concurring proximate cause of his death, and for this the defendant is liable. The instruction complained of clearly enough states the principle as we understand and have explained it. But, in any view, the instruction could not have prejudiced the defendant, since it assumes that pneumonia was a concurring proximate cause of death, whereas there is ample evidence from which the jury could have found, with seeming justness, that the deceased had practically recovered from pneumonia, and that his death was directly and solely due to cerebral meningitis caused by the injuries wrongfully inflicted upon him by the defend ant. We conclude that we would not be justified from anything presented in the record before us in disturbing the result reached in the court below, and, accordingly, the judgment and the order appealed from are affirmed. We concur: CHIPMAN, P. J.; NETT, J. SILBERSTEIN v. KITRICK et al. (Civ. 1735.) BUR (District Court of Appeal, Third District, Cali- PRINCIPAL AND SURETY 117 Appeal from Superior Court, Butte County; H. D. Gregory, Judge. Action by H. Silberstein against R. S. Kitrick and another. From adverse judgment and order, plaintiff appeals. Affirmed. Charles J. Heggerty, of San Francisco, and W. H. Carlin, of Marysville, for appellant. A. F. Jones and George F. Jones, both of Oroville, for respondents. from defendants the sum of $10,000 on a CHIPMAN, P. J. The action is to recover bond given by them for that amount as sureties of the Burnight-Kennedy Company, a corporation, which had entered into a contract with plaintiff to erect a building in the city of Chico. The cause was tried by the court without a jury, and defendants had findings and judgment in their favor. Plaintiff appeals from the judgment and from the order denying his motion for a new trial. The contract price for the building was $41,500, to be paid by progressive payments, as follows: "First. The sum of two thousand ($2,000) dollars when all excavation is completed and the walls are up ready to receive first or street floor joists. "Second. The sum of twenty-nine thousand one hundred ($29,100) dollars from time to time as the work progresses, from the date of the first payment until the completion of the building; said sum of $29,100 to be paid in the sums of $2,000 each, when labor and material have been performed and placed in the building, exceeding said several sums by 25 per cent. Each payment shall be a stop or rest, and the next payment of $2,000 to be made when an additional amount of labor and material has been performed and furnished 25 per cent. in excess of the payment to be made. After thirteen payments of $2,000 have been made and upon the final completion and delivery of the building the sum of $31,000 shall be made, and the balance and last payment of the contract price, to wit, the sum of $10,400, shall be made thirty-six (36) days after the completion and delivery of the building." By appropriate averments in their answer, defendants sought to have corrected an obvious ambiguity or mistake in the latter part of clause "Second," which provided for a completion payment of $31,000, so as to read $3,100, and the court, on sufficient evidence, found that it was the intention of the parties that this payment should be $3,100. Thus construed, payments should have been made as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |