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of its negligence and carelessness to give the proper or any signal as its train approached said crossing, the horse of said Katherine S. Johnson was frightened and ran away, and she was thrown violently out of the wagon and killed.

6. That by reason of her death plaintiff Frank W. Johnson was deprived of her services and assistance and companionship, and the plaintiffs Leslie H. Johnson and Olin W. Johnson were deprived of the care, training, and society of their said mother, and plaintiffs have been damaged thereby in the sum of $20,000.

Wherefore, plaintiffs pray judgment against the defendant in the sum of $20,000, and costs of suit. Richards & Carrier,

Attorneys for plaintiffs.
C. F. Carrier,

Guardian ad litem for minor plaintiffs.


A demurrer to the complaint in form No. 906 was originally sustained by the trial court, but, upon appeal, the judgment for defendant following the sustaining of said demurrer, plaintiffs declining to further amend, was reversed: Johnson v. Southern Pacific R. Co., 147 Cal. 624, 82 Pac. 306, 1 L. R. A. (N. S.) 307; s. c., 154 Cal. 285, 97 Pac. 520.

For defenses to actions for negligence generally, see ch. CV, forms Nos. 866-868.


FORM No. 907-In action by administrator, for wrongful death of passenger on overloaded street-car.

(Adapted from Olston v. Oregon etc. R. Co., 52 Ore. 343; 96 Pac. 1095; 97 Pac. 538; 20 L. R. A. (N. S.) 915n.)1

[Title of court and cause.

Now comes the plaintiff and replies to the answer of the defendant herein, and alleges as follows:

1. Plaintiff, for reply to said answer, denies the execution of the

1 Fraud in procuring contract of release under seal.-Defense in action at law as affected by statute.-On the rehearing of the case from which the foregoing form is taken, the court, with reference to the defense of fraud as against an instrument under seal, says: If a simple contract is induced by fraud, the defrauded party may rescind it without the aid of equity, and may plead the fraud in defense of an action to enforce it or to recover damages for its breach. The seal is primary evidence of a consideration, which means that the presumption thus arising may be overcome by evidence to the contrary, and is therefore subject to defenses at law, the same as a simple contract in which the consideration is expressed: Olston v. Oregon etc. R. Co. (Ore.), 97 Pac. 538, citing Brown v. Freeman & Bynum, 79 Ala. 406; Strayhorn v. Giles, 22 Ark. 517; Aller v. Aller, 40 N. J. 446; Milliken v. Thorndike, 103 Mass. 382; Irving v. Thomas, 18 Me. 418; Williams v. Haines, 27 Iowa 251, 1 Am. Rep. 268, distinguishing the last named case as to the force of the Iowa statute from the case of Vandervelden v. Chicago etc. R. Co. (C. C.), 61 Fed. 54, in which it was held that such defense is cognizable only in equity.

release as alleged therein, but states affirmatively that, being induced by false, fraudulent, and unlawful representations made by defendant with intent to defraud and deceive him, he signed the said release in his individual capacity, and not as administrator of the estate of decedent, and that thereafter he rescinded said settlement and tendered the return of all money, checks, and deposits, given by the defendant for said release.

2. That the following is a statement of the facts constituting said false, fraudulent, and unlawful representations made by defendant to the plaintiff, and because of which, and not otherwise, the plaintiff signed said alleged release: [Here are alleged the facts constituting the fraud.]

And for a second and separate reply, plaintiff alleges:

That said release and settlement, or settlement, is not binding upon the estate of the decedent or his personal representatives, for the reason that the same was made without an order of the county court authorizing the same.

Wherefore, plaintiff prays that said release be rescinded and canceled and decreed to be void and of no effect, and that plaintiff be awarded the relief prayed for in his complaint herein.

A. B., Attorney for plaintiff.


FORM No. 908-For plaintiff upon verdict.

(In Johnson v. Southern Pacific R. Co., 154 Cal. 285; 97 Pac. 520.)

[Title of court and cause.]

The said parties appeared counsel for the plaintiffs,

This cause came on regularly for trial. by their attorneys,-Richards & Carrier, and Canfield & Starbuck, for defendant. A jury of twelve persons were regularly impaneled and sworn to try said action. Witnesses on the part of the plaintiffs and defendant were sworn and examined. After hearing the evidence, the arguments of counsel, and instructions of the court, the jury retired to consider of their verdict, and subsequently returned into court with the verdict, signed by the foreman, and, being called, answered to their names, and said: "We, the jury in this cause, find a verdict for the plaintiff for $8,000.”

Wherefore, by virtue of the law, and by reason of the premises aforesaid, it is ordered, adjudged, and decreed, that plaintiffs have and recover from defendant the sum of $8,000, with interest thereon

at seven per cent per annum from the date hereof until paid, together with plaintiffs' costs and disbursements incurred in this action, amounting to the sum of $105.10.

Dated, February 2, 1906.

J. W. Taggart, Judge of the Superior Court.

Forms of petition [and complaints] in actions for death by wrongful act: Atchison etc. R. Co. v. Cochran, 43 Kan. 225, 23 Pac. 151, 41 Am. & Eng. R. Cas. 48; Weber v. Atchison etc. R. Co., 54 Kan. 389, 390, 38 Pac. 569; Galveston etc. R. Co. v. Leonard (Tex. Civ. App.), 29 S. W. 955; Wellman v. Oregon etc. R. Co., 21 Ore. 530, 531, 28 Pac. 625.

Form of petition in an action by an administratrix to recover damages for the death of her husband, caused, as alleged, by the negligence of the defendant railroad companies: St. Louis etc. R. Co. v. Willis, 38 Kan. 330, 338, 16 Pac. 728.

Form of answer in an action to recover damages alleged to have resulted from wrongful death caused by the gross and wanton negligence of a railroad company: Limekiller v. Hannibal etc. R. Co., 33 Kan. 23, 5 Pac. 401, 52 Am. St. Rep. 523, 19 Am. & Eng. R. Cas. 184.

Form of answer in an action to recover damages for death by wrongful act; action brought by the administrator for the benefit of the father and mother of the deceased: Cherokee etc. Min. Co. v. Britton, 3 Kan. App. 292, 298, 45 Pac. 100, 103.

Form of instructions to jury in an action brought to recover damages for death caused by the negligent explosion by defendant of a blast, whereby the plaintiff's intestate was killed: Munro v. Pacific Coast Dredging etc. Co., 84 Cal. 515, 516, 24 Pac. 303, 18 Am. St. Rep. 248.

§ 380. ANNOTATIONS.-Death by wrongful act.

1. Time in which suit must be brought.

2. Statutory requirements must appear in the petition.

3. Existence of beneficiaries designated by the statute must be alleged.

4. Action under Arizona statute.

5. Existence of beneficiaries.-When not required to allege.

6. All heirs.-When necessary parties.

7. Substitution of representative for heirs as parties.

8. Foreign state.-Action maintained in.

9, 10. Manner of pleading negligence.-Specific and general allegations. 11. Damages.-Elements of.

12. "Sorrow, grief, and mental suffering."

13. "Society, comfort," etc.

14. Loss of services of child.

15. Pecuniary loss as measure of damages.

16. Pecuniary damages.

17. Measure of compensation to minors for death of parent.

18. Statutory limitation upon damages.

19. Passenger in automobile.-Death resulting from negligence.

20. Defenses.-Contributory negligence of parent.

21, 22. Unskilful treatment of patient.

23. Defenses of assumption of risk and contributory negligence of deceased.

24. Negligence and contributory negligence.-Questions of fact.

1. Time In which sult must be brought.-Actions for wrongful death are statutory, and the persons who alone may sue must sue within the time prescribed by the statute: Clark

v. Kansas City etc. R. Co., 219 Mo. 524, 118 S. W. 40, 45, and cases cited.

2. Statutory requirements must appear in the petition.-In statutory actions, such as that for wrongful death,

the party suing must bring himself strictly within the statutory requirements necessary to confer the right, and this must appear in the petition; otherwise, it shows no cause of action: Barker v. Railroad, 91 Mo. 94, 14 S. W. 282; Clark v. Kansas City etc. R. Co., 219 Mo. 524, 118 S. W. 40, 45.

3. Existence of beneficiaries designated by the statute must be alleged.Where the statute gives a right of action in favor of a designated class of beneficiaries in existence, the failure to aver in the declaration or complaint the existence of any of such latter class is fatal on demurrer: Bartlett v. Chicago etc. R. Co., 21 Okla. 415, 96 Pac. 468, 470, quoting the rule as stated in 13 Cyc. 342. 4. Action under Arizona statute.Action for damages resulting from death caused by the tort of another, under paragraph 2765 of the Revised Statutes of Arizona of 1901, is for the benefit of the estate of the decedent: Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, 403.

Under the statute of Arizona (Rev. Stats. 1902, 2765), creating a right of action for damages resultant from death caused by the tort of another, and providing: "Every such action shall be brought by and in the name of the personal representative of such deceased person; and, providing, that the father, may maintain the action for the death of a child; • • and the amount recovered in such action shall be distributed to the parties and in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate"; held, that a complaint is sufficient which contains allegations "that plaintiff and his wife are father and mother of the deceased; that plaintiff, on [a day stated], was the defendant's tenant of the premises in question, then owned by defendant; that the defendant wrongfully and negligently kept and maintained, and suffered to remain, upon the premises a certain adobe wall, exposed and in a dangerous condition; that defendant knowingly maintained said adobe wall with utter disregard to persons living and to business in and upon said premises, and knowingly and wilfully suffered said wall to remain in said dangerous condition after being notified of the said condition of

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the said adobe wall; that without fault or negligence of the decedent or plaintiff the said wall fell on and instantly killed the decedent; that by reason of the premises, and by virtue of paragraph 2764 of the Revised Statutes, a cause of action has arisen in favor of plaintiff against defendant for damages for the death of said child; that said damages are $4,800," etc. In this complaint the court held that every essential fact was disclosed. The complaint should, however, contain an allegation whether the plaintiff seeks to sue in a representative capacity, or whether he is attempting to sue in a personal capacity. The complaint above was indefinite in this respect; but inasmuch as the defendant failed to make any objection by special demurrer or by motion to make more definite and certain, the court held that such indefiniteness could not be cured on appeal, and that, in the main, the complaint sufficiently disclosed a right of action in the plaintiff in this representative capacity: De Amado v. Freidman (Ariz.), 89 Pac. 588, 589 (for wrongful death of child-negligence in maintaining dangerous wall). 5. Existence of beneficiaries. When not required to allege.-In such actions it is not incumbent upon the plaintiff to allege or prove the existence of beneficiaries, or the amount of damages suffered by them. Damages are deemed to have been caused to the estate by reason of the death, and are to be distributed as by law to those who are entitled by law to such estate: Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, 402 (for damages for wrongful death of adult person-negligence resulting in railroad collision).

6. All heirs.-When necessary parties. -Under the California statute, an action for wrongful death may be brought either by the representative or all the heirs. If an action is brought by heirs, all must be joined therein, either as plaintiffs or defendants: Salmon V. Rathjens, 152 Cal. 290, 294, 92 Pac. 733. 7. Substitution of representative for heirs as parties.-In an action for wrongful death, the personal representative may be substituted in place of the widow and children, and such substitution is not in violation of the general rule forbidding a substitution of parties which operates to change the original cause of action: Pugmire v.

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Diamond Coal etc. Co., 26 Utah, 115, 72 Pac. 385; Sargent v. Union Fuel Co. (Utah), 108 Pac. 928, 929.

8. Foreign state.-Action maintained In.--An action for death by wrongful act under a statute giving the right may be maintained in another state having a statute substantially similar in import and character: St. Louis etc. R. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65; St. Louis etc. R. Co. v. McNamare, 91 Ark. 515, 122 S. W. 102, 105. See cases cited in note to Raisor v. Chicago etc. R. Co., 2 Am. & Eng. Ann. Cas. 806.

9. Manner of pleading negligence.Specific and general allegations.-A petition in which the following specific allegations are found was held not entitled to be treated as a petition charging general negligence; and held, further, that the same were intended as a specific summary of the more general allegations which preceded them, although this did not convert the pleading from one specifically alleging negligence to one alleging negligence only generally. The following are the allegations referred to: "That the death of plaintiff's said husband, George W. Evans, was caused by the carelessness and negligence of defendant's engineer running said passenger engine, in failing and neglecting to keep a proper lookout in front of his engine, and in failing and neglecting to observe the said freight engine and train standing on said track, and by the carelessness and negligence of the engineer and train crew of said freight train aforesaid, in failing and neglecting to give the proper signals to the engineer of said passenger engine in time to avoid said collision, thereby causing said collision and killing plaintiff's said husband as aforesaid": Evans v. Wabash R. Co., 222 Mo. 435, 121 S. W. 36, 41.

10. As to the manner of pleading negligence in actions to recover for wrongful death, see Chicago etc. R. Co. v. Smith (Ark.), 127 S. W. 715, 717. 11. DAMAGES. Elements of. Elements of damages proper to be considered by jury for which damages may be awarded to parents in actions for wrongful death are: (1) loss of child's services during minority; (2) mental anguish and suffering of parents; (3) expenses for medical attendance; and (4) funeral expenses: Karr v. Parks, 44

Cal. 46; Sykes v. Lawlor, 49 Cal. 236; Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269. (But see cases cited in paragraphs 12 and 14, post.)

12. "Sorrow, grief, and mental suffering."-Mental distress of parent consequent upon death of child is not an element of damages: Morgan v. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 603, 17 L. R. A. 71, 29 Am. St. Rep. 143.

"Sorrow, grief, and mental suffering" are circumstances too remote to be taken into consideration by a jury in assessing damages: Munro V. Pacific Coast D. & R. Co., 84 Cal. 515, 525, 24 Pac. 303, 18 Am. St. Rep. 248. See State v. Baltimore etc. R. Co., 24 Md. 84, 87 Am. Dec. 600.

13. "Society, comfort," etc.-In estimating the pecuniary loss the jury may be instructed that they have a right to take into consideration the loss of society, comfort, and care suffered by the heirs in the death of a husband and father; but compensation for loss of society, comfort, and care can not be made a separate and distinct element of damage: Dyas v. Southern Pacific Co., 140 Cal. 296, 73 Pac. 972. See Munro v. Pacific Coast D. & R. Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Louisville etc. R. Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. 472, 12 Am. St. Rep. 371, and note 12 Am. St. Rep. 375-383; Hale v. San Bernardino etc. Co., 156 Cal. 713, 716, 106 Pac. 83, and cases cited.

14. Loss of services of child.-In such a case the main element of damages is the loss of the child's services; and determination of such damages is left by the legislature to the discretion of the jury: Cleary v. City R. Co., 76 Cal. 240, 18 Pac. 269; Morgan v. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 29 Am. St. Rep. 143, 17 L. R. A. 71.

15. Pecuniary loss as measure of damages. In an action under a statute for negligence in wrongfully causing death, the damages must be confined to the pecuniary loss suffered by kindred and loss of comfort, society, support, and protection of the deceased: Munro v. Pacific Coast D. & R. Co., 84 Cal. 515, 527, 24 Pac. 303, 18 Am. St. Rep. 248.

16. Pecuniary damages are limited to probable value of life of deceased to relatives: Morgan v. Southern Pacific R. Co., 95 Cal. 510, 30 Pac. 601, 603, 29 Am. St. Rep. 143, 17 L. R. A. 71; Pepper v. Southern Pacific Co., 105, Cal. 389, 38

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