Bowler v. Roos

THE COURT.

This is an action for wrongful death. The deceased, Mrs. Bridget Bowler, a woman sixty-two years of age, was riding in an automobile driven by her son, Edward Bowler, when a collision occurred between the said automobile and one driven by defendant Larson for his employer, defendant Roos. The heirs of Mrs. Bowler, nine in number, joined in this action, and the jury returned a verdict in their favor in the sum of $7,000;. The evidence satisfactorily establishes negligence on the part of defendant Larson and contributory negligence on the part of Edward Bowler.

Counsel for defendant urged that .the action for wrongful death should be barred by the contributory negligence of any heir, on the theory that the action is single and indivisible, and if recovery by one heir is barred, the bar must necessarily apply to all. The argument is without substance and it is not, as counsel suggest, newly raised in this state. It was presented, fully considered, and rejected in

Bowen

v.

Kizirian,

105 Cal. App. 286 [287 Pac. 570], The court there said (105 Cal. App. 290 [287 Pac. 570, 571]): “It is established that the failure of one of the plaintiffs to prove loss will not defeat recovery by another of the plaintiffs whose pecuniary loss has been proved. And this notwithstanding the fact that under the statute, as interpreted by our courts, only one action may be brought and only one judgment recovered. So far as the interpretation of this statute is concerned, no reason appears why the rule should be any different where the evidence discloses that one of the parties is not entitled to recover, not on ac

[486]

count of a failure to prove pecuniary loss, but because of the intervention of another rule, such as contributory negligence. In

Estate of Riccomi, 185

Cal. 458 [14

A.

L. R. 509, 197 Pac. 97], ... it is said that it would be absurd to hold that because two heirs must join in one action, the one proving damage must share the proceeds with the one suffering no injury. It would seem equally absurd to hold that an innocent party cannot recover because another party, with whom he is required by law to be joined as plaintiff, is not innocent.”