Barnes v. Rockhold

WHITE, P. Defendants appeal from a judgment against them in favor of the widow and three minor children of Burl Donald Barnes, who died instantaneously as the result of injuries received by him when he was crushed between the front end of the truck he had been driving and the back of defendants’ trailer.

Decedent and defendant Rockhold were each driving a semi-truck and trailer east from California. Before daylight on January 12, 1956, Rockhold drove into the Ehrenberg Inspection Station and stopped a few feet behind a truck and trailer which was already stopped in one of the lanes awaiting clearance. ■ A minute or so later decedent stopped his semitruck and trailer a few feet behind that of Rockhold. Defendant Rockhold, in preparing to depart, released the brake on his vehicle and it rolled back a few feet, crushing decedent against the front of his own vehicle.

Plaintiffs reside in Oklahoma and are the sole heirs at law of the decedent. Defendant Watson Brothers Transportation Company is a resident of Nebraska licensed to do business in California. Defendant Rockhold, an employee of Watson [395]Brothers acting within the scope of his employment at the time of the accident, resides in California.

The action was tried before a jury and the judgment for $65,000 entered upon their unanimous verdict. Motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial were denied.

The only errors specified in the opening brief are: (1) that the complaint fails to state a cause of action under the law of the State of Arizona where the accident occurred; and (2) that the court failed to instruct the jury on the question of damages according to the law of Arizona.

As urged by appellants, the objection that the complaint does not state facts sufficient to constitute a cause of action is not waived by their failure to raise it before trial by demurrer or answer. (Code Civ. Proc., § 434.)

In the instant action, it is conceded that the complaint states a cause of action under the law of California (Code Civ. Proc., § 377), and that, if the action had been commenced by the personal representative of the decedent, the complaint would not be faulty under the Arizona law. (Arizona Wrongful Death Statute, § 12-612.) Under the Arizona statute, in the absence of other estate in Arizona, the action could have been commenced and maintained by the surviving widow in her own name alone and on behalf of the estate, and in any case “the amount recovered in such action shall not be subject to the debts or liabilities of the deceased.” (Arizona Wrongful Death Statute, § 12-612.)