Plecity v. Keilly

McCOMB, J.

From a judgment in favor of plaintiffs after trial before the court without a jury in an action to recover damages for wrongful death, pursuant to the provisions

[650]

of section 377 of the Code of Civil Procedure, defendant David I. Keilly appeals. The appeal is based upon the judgment roll alone.

Defendant urges reversal of the judgment on the proposition

that it was error for the trial judge to give a judgment in favor of plaintiffs reading thus:

“That the plaintiffs, and each of them, recover judgment against the defendant David Samuel Keilly in the sum of twenty-five hundred ($2500.00) dollars.”

This proposition is tenable. The law is established in California that in an action predicated upon section 377 of the Code of Civil Procedure the judgment should be given for a “lump sum”, which amount should be the total of the pecuniary loss suffered by each plaintiff, and in such a case the court should not attempt to apportion the loss of each heir in the judgment

(Rose

v.

San Diego Elec. Ry. Co.,

133 Cal. App. 646, 651 [24 Pac. (2d) 838];

Simoneau

v.

Pacific Elec. Ry. Co.,

159 Cal. 494, 508 [115 Pac. 320];

Rickards

v.

Noonan,

40 Cal. App. (2d) 266, 271 [104 Pac. (2d) 839]).

Applying the foregoing rule to the facts in the instant case, it is evident that the trial judge did not give judgment in one lump sum in favor of the plaintiffs, but, on the contrary, attempted to apportion the damages between the plaintiffs, giving each a several judgment in the sum of $2,500.

In view of the fact that the present appeal is on the judgment roll alone, we do not have the record before us and we are not in a position to apply section 4% of article VI of the Constitution of the State of California.