Earley v. Pacific Electric Railway Co.

HENSHAW, J.

This appeal is from the judgment and from the order denying defendant’s motion for. a new trial. The action was brought under section 377 of the Code of Civil Procedure by the widow of W. H. Earley. Her husband had

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been a passenger upon a car of defendant corporation and was injured by a collision. As the result of his injuries he died. Before his death he executed a release to the defendant in consideration of the payment to him of his hospital expenses and of five thousand two hundred dollars in money. The contract was in writing and released ‘ ‘ The Pacific Electric Railway Company from any and all claims and causes of action on account of any and all personal injuries . . . suffered by me . . . and due to collision of a car . . . upon which I was a passenger.” When, following her husband’s death, the widow commenced and prosecuted this action, this release was presented to and urged upon the court as a complete defense thereto, and around this single proposition revolve all the questions presented upon this appeal.

Section 377 of the Code of Civil Procedure, under which this action was brought, provides that “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 such 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 all the circumstances of the case may be just.” The attorney for the appellant, and

amici curiae

adopting the same construction of the law as does appellant’s attorney, have presented for the consideration of this court elaborate briefs discussing the origin of the right of action for wrongful death under Lord Campbell’s Act, the varying statutes of the states of the United States passed after, and some in copy of the English Act, and from a learned and elaborate analysis reach the conclusion that the wrong which the defendant committed—the tort upon the person of the deceased—was necessarily but a single wrong, and that as, the defendant had received its full acquittance and discharge from all consequences arising from that wrong from the injured man himself, the wrong itself was compensated for and in point of law was extinguished, so that it could not be made the basis of any further action by any person whatsoever.