McCarthy v. Frost

Opinion

FLEMING, J.

In an action for wrongful death plaintiffs McCarthy appeal a partial judgment on the pleadings in favor of defendants Frost, Howenstine, Winkleman, Jacobs, and the State of California.

The amended complaint states that plaintiffs are the wife and minor children of decedent William McCarthy. Defendants are highway patrolmen employed by the State of California. At 6 p.m. on 24 February

1969

[874]

McCarthy was driving a 1966 Jaguar eastbound on Highway 101 near Sheffield Drive in Santa Barbara County. Then: “At all times and at such time and place defendants negligently and carelessly failed to discover William Joseph McCarthy, the decedent, and failed to search for him or his vehicle, failed to find him, failed to summon medical aid, failed to administer first aid, failed to remove him from his vehicle, prevented others from finding him and prevented others from rendering medical aid, and defendants so negligently and carelessly conducted themselves as to proximately cause the death of William Joseph McCarthy, deceased, as hereinabove alleged.” As a result, plaintiffs suffered damages in excess of $ 1,000,00o.

1

On motion for judgment on the pleadings, as on general demurrer, the question is whether the complaint states a cause of action.

(Maxon

v.

Security Ins. Co.,

214 Cal.App.2d 603, 610 [29 Cal.Rptr. 586].)

2

We agree with the trial court’s conclusion that the complaint does not state a cause of action because it does not set forth a legal duty owed by defendants to decedent or plaintiffs.

Plaintiffs contend Vehicle Code section 2412 imposes a duty on defendants for the benefit of decedent. That section states: “All members of the California Highway Patrol may investigate accidents resulting in personal injuries or death and gather evidence for the purpose of prosecuting the person or persons guilty of any violation of the law contributing to the happening of such accident.” In response to this contention we observe, first, that the three causes of action do not allege that there was an accident.