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ADAMS v. SOUTHERN PAC. CO. et al.*
This action was instituted by the administrator of the estate of Leo R. Schwanekamp, deceased, for the purpose of recovering compensatory damages for the death of said Schwanekamp, which was alleged to have been caused by the joint negligence of the railroad company and the county of San Bernardino. The plaintiff's complaint also sought recovery of damages for loss of property and for burial expenses of the deceased. At the conclusion of the trial the court, sitting without a jury, absolved the railroad company from any liability to plaintiff and rendered judgment in plaintiff's favor against the defendant county in the amount of $1,500 for the wrongful death of Schwanekamp, and permitted recovery of the sum of $240 for damages to an automobile which the deceased was operating at the time the accident which resulted in Schwanekamp's death occurred. From this judgment both plaintiff and the defendant county of San Bernardino have appealed. The latter appeal will herein be first considered. A statement of the undisputed facts disclosed by the evidence is necessary for a proper understanding of the various points urged on this appeal.
At some time between 10 o'clock and 10:30 o'clock in the evening of August 24, 1927, Schwanekamp and a woman companion set out from the city of Redlands to drive to the city of Los Angeles in a Chevrolet coupé automobile which belonged to Schwanekamp and which he drove on the journey. In leaving Redlands they proceeded in a westerly direction on a county highway of the county of San Bernardino which extended along a street known as Barton avenue. At some time between 11 o'clock and 11:30 o'clock of the same evening Schwanekamp and his companion approached a right of way of the Southern Pacific Company which intersected Barton avenue. This crossing is known as the Bryn Mawr crossing. The railroad right of way is 100 feet in width. At the point of intersection there are five tracks on the right of way, the main track of the Southern Pacific Company and four side tracks. Easterly from the right of way, Barton avenue, at the time of the accident, was paved approximately 40 feet in width to a point on the north side of said avenue, which was between 15 and 21 feet from the easternmost rail on the railroad crossing. The street was paved across the railroad right of way to a width of 28 feet. West of the right of way the street was 28 feet in width and was paved to a width of approximately 18 feet. During the month of January, 1926, the pavement on Barton avenue east of the railroad tracks had been extended on the north side for a distance of approximately 12 feet up to a point which was between 15 and 21 feet from the most easterly rail of the railroad tracks. The result of this widening process was to leave unpaved on the north side of the avenue east of the railroad crossing a strip approximately 12 feet in width and between 15 and 21 feet in length. After the pavement had been thus widened, no barrier or fence or sign was placed at the point by the county for the purpose of diverting travel from the unpaved portion of the street or to warn drivers on the highway that they were approaching a railroad crossing whereon the pavement was narrower than that of the highway. On the west side of the crossing at the south side of Barton avenue there was a railroad crossing sign maintained by the railway company, and on the north side of the avenue west of the crossing there was a white fence. On the railroad crossing the rails of the tracks were flush with the pavement on that portion of the crossing which was paved. North of the paved portion the rails extended upward for a distance of about 51/212 inches above the surface of the surrounding ground. Schwanekamp was driving his automobile along the north side of the avenue as he approached the railroad crossing. When his automobile reached the crossing, one or more of the front wheels struck the first protruding rail which was encountered. This sudden contact caused both persons in the automobile to be thrown from it. Schwanekamp was thereby injured so severely that he died two days later. The automobile continued on its course for some distance and was overturned and almost completely wrecked.
The contentions of the appellant county of San Bernardino on its appeal from the judgment may be summarized as follows: Respondent sought to impose liability upon appellant and its codefendant, the Southern Pacific Company, for the alleged wrongful death of his intestate on two grounds. These were that they were guilty of negligence, first, in failing to have paved the railroad crossing to the same width that the highway east of said crossing was paved, and, second, in failing to have erected a barrier or some obstruction, or a sign which would have conveyed warning to travelers on the highway that the railroad crossing was not paved to the same width as the highway and that, due to the narrower paving and exposed rails, they were approaching a place of danger. No liability could be imposed upon the county for failure to have more extensively paved the railroad crossing. The evidence produced during the trial showed that the Southern Pacific Company was the owner of the right of way and had exclusive control over it, and that the county had no authority to enter upon such right of way and to pave or otherwise to improve it. The liability of the appellant county must therefore rest upon the charge that it was negligent in having failed to erect a barrier or sign which would have conveyed warning to travelers on the highway that they were approaching a railroad crossing whereon the pavement was narrower than on the highway. The alleged negligence of appellant in the last-mentioned respect does not amount to a charge that the highway itself was defective in any respect or that the extension of the pavement on the highway east of the railroad crossing created a condition that was inherently dangerous. The liability of appellant is based upon its alleged negligence in having failed to perform a duty which it owed to the traveling public. Appellant is not an insurer of the safety of the highways under its control. The primary question to be answered is whether it may be declared that a reasonably prudent person should have foreseen that the failure to warn by the erection of a sign or barrier would be reasonably certain to endanger the safety of persons rightfully using the highway. The conditions shown by the evidence to have existed at the time of the accident indicate that this question should have been answered in the negative. It was shown that the protruding rails on the unpaved portion of the railroad crossing were visible to drivers of motor vehicles approaching the crossing from the east for a distance of at least 2,000 feet during the daytime and for a distance of at least 200 feet at night if the automobiles of such drivers were equipped with efficient headlights properly illuminated. Even though the above-stated question should be answered in the affirmative, the burden rested upon respondent to show that appellant's negligence was the proximate cause of the death. This burden was not sustained. Contributory negligence of the deceased was pleaded and proved as a proximate cause of death and the property damage shown to have resulted from the accident. The evidence conclusively established that the place of danger was clearly visible to an automobile driver at night if his automobile was equipped with proper headlights properly illuminated. If it be assumed that respondent's intestate did not see the narrower pavement on the railroad crossing and the adjacent protruding rails of the railway tracks, he was himself chargeable with his failure in this regard, a failure which constituted negligence directly contributing to the happening of the accident that cost him his life. These contentions merit careful consideraton.
It is conceded that liability is here sought to be imposed on appellant county of San Bernardino in accordance with the provisions of section 2 of Act 5619 of the General Laws of California (Stats. 1923, p. 675; Deering's Gen. Laws 1931, Act 5619). So far as is here relevant, this statute provides that “Counties, * * * shall be liable for injuries to persons and property resulting from the dangerous or defective condition of public streets, highways * * * in all cases where the governing or managing board of such county * * * or other board, officer or person having authority to remedy such condition, had knowledge or notice of the defective or dangerous condition of any such street, highway * * * and failed or neglected, for a reasonable time after acquiring such knowledge or receiving such notice, to remedy such condition or failed and neglected for a reasonable time after acquiring such knowledge or receiving such notice to take such action as may be reasonably necessary to protect the public against such dangerous or defective condition.”
It is evident from the above-quoted language that Act 5619 is a general act, defining the liability of a county and the other public bodies named therein to the general public and specifying the conditions under which said liability may attach. Ahern v. Livermore Union High School District, 208 Cal. 770, 782, 284 P. 1105. One of the important conditions precedent to the imposition of such liability is the requirement that the governing or managing board of the county shall have had knowledge of the defective or dangerous condition of the street or highway which is alleged to have been the proximate cause of the injuries sustained. The question of knowledge, which is often an important feature in actions based upon the above-mentioned statute, is not here present. It is conceded that appellant had notice of the condition which is alleged to have been a dangerous condition. Nor is it disputed that the highway whereon the deceased was traveling at the time he was fatally injured was a public highway under the control of appellant. The important primary question in the case is whether or not it was satisfactorily shown that there was in fact any defective or dangerous condition of the highway which appellant should have remedied. A consideration of this question in effect amounts to a consideration of appellant's contention that the trial court's finding that appellant was negligent is lacking in evidentiary support. A consideration of this contention requires a summary of the evidence which bears upon the question.
The only evidence presented to the trial court which showed the circumstances immediately preceding the happening of the accident consisted of the testimony of the woman who was then riding in the automobile operated by the deceased as his guest. The testimony of this witness may be summarized as follows: The witness and deceased set out from Redlands on the return journey to Los Angeles between 10 o'clock and 10:30 o'clock in the evening in a Chevrolet coupé, which was the property of deceased, and was being then operated by him. As they proceeded in a general westerly direction along a highway which neither had ever before traversed, they approached the scene of the accident at approximately 11:30 p. m. The night was dark. The headlights of the automobile were burning and illuminated the roadway in front of the automobile for a distance of at least 200 feet. The automobile was proceeding along the north side of the street. For some distance prior to arriving at the scene of the accident the automobile was operated at a speed of approximately 30 miles per hour. When the vehicle arrived at the point where the paving on the north side of the highway terminated, the speed was decreased to about 25 miles per hour, and as it approached nearer to the railroad crossing, the driver applied the brakes with the result that the speed of the automobile was further decreased to about 15 miles per hour. The driver also caused the car to swerve slightly to his left. His efforts to prevent the wheels of the automobile from coming in contact with the projecting rails of the railroad were unsuccessful. At the time the wheels of the automobile struck the rails, both doors of the coupé flew open and both occupants of the machine were thrown from it. For a distance of approximately 150 feet east of the railroad crossing the highway made a slight ascent. The witness was awake and was looking ahead in the direction in which the automobile was proceeding. When the car arrived at a point about 15 feet east of the place where the pavement on the north side of the highway came to an end, she observed that they were approaching the end of the pavement. She had theretofore observed a railroad crossing sign which was on the south side of the highway and west of the railroad crossing, and a white fence which was on the north side of the highway and likewise west of the railroad crossing, and was aware that the machine was approaching a railroad crossing. She did not, however, then observe the projecting rails of the railroad and did not see such rails until the coupé was very near the easternmost rail and “almost ready to hit” this rail.
It is obvious that the basis for respondent's claim that the fatal accident was caused by the negligence of appellant rests upon the contention that the failure of appellant to have erected a barrier or other obstruction or a warning sign at or near the point where the pavement terminated on the north side of Barton avenue created a dangerous condition. Appellant maintains that no duty rested upon it to erect such obstruction or sign unless it can be declared that appellant should have foreseen that automobile drivers using ordinary care for their own safety would not perceive the projecting rails in ample time to avoid striking them. This suggestion is so closely interwoven with the contention that the evidence showed that the deceased was guilty of contributory negligence that it will be considered along with the contributory negligence contention. With respect to the general charge that the evidence failed to show that appellant was guilty of negligence in having failed, with knowledge of the situation, to erect a barrier or sign, it must be conceded that this question was one of pure fact to be determined by the trial court. We are not constrained to disturb the finding of negligence upon the facts disclosed by the record.
In support of the contention that the finding negativing contributory negligence by the deceased is not supported by the evidence, it is declared that there was uncontradicted evidence which showed that the rails were clearly visible at night for a distance of 200 feet east of the railroad crossing, and it is therefore argued that the testimony of the above-mentioned witness to the effect that she did not see the rails until the automobile in which she was traveling was “almost ready to hit” the easternmost rail necessarily gave rise to the inference that she was not giving proper attention to what was ahead. In other words, the effort is made to apply the principle that one is under the duty of seeing that which is visible. The chief difficulty which arises in attempting to apply the principle is that it must be applied, not to the witness, but to the driver of the automobile to recover damages for whose death this action was instituted. If it be conceded that the principle is applicable to the passenger, a concession that is dependent on the inference that she must have seen what was visible, it does not follow therefrom that it must be declared that the driver must have seen the projecting rails because they were generally visible at night for a distance of 200 feet east of the railroad crossing. We may not overlook the general presumption that one who is operating an automobile on a highway will employ ordinary care for his own safety. Smellie v. Southern Pacific Co., 212 Cal. 540, 299 P. 529; Gorman v. County of Sacramento, 92 Cal. App. 656, 268 P. 1083. Furthermore, there was no showing that the conditions which existed at the time when other witnesses testified they could see the rails for a distance of 200 or more feet east of the railroad crossing in the nighttime were the same as the conditions which prevailed at the time of the accident which formed the basis of this action. We think, therefore, that it did not sufficiently appear that the projecting rails were necessarily always visible in the nighttime for a distance of at least 200 feet, so that we must declare that the trial court committed reversible error in failing so to find and in further failing to find that the deceased was himself guilty of negligence in not having seen that which was visible. Bennett v. Kings County, 124 Cal. App. 147, 12 P.(2d) 47.
The negligence of the county for which recovery was here permitted was, as heretofore mentioned, the failure so to have obstructed the highway by means of a fence or guard rail or in some other manner to have conveyed information to the drivers of automobiles that a railroad crossing was in close proximity and that the pavement over such crossing was narrower than the highway up to the point where the paving on the north side of such highway ended. It is undenied that the deceased operated his automobile on his right-hand side of the highway as he approached the railroad crossing. There was evidence that he was driving at a moderate rate of speed as he proceeded up the slight grade which brought him nearer to the crossing and that he decreased this rate of speed twice, the second diminution occurring when he applied his brakes at about the time he arrived at the unpaved portion of the highway and amounting to a reduction of approximately half the speed at which he was then operating the automobile. The evidence also indicates that he attempted to swerve the automobile to the left for the purpose of avoiding the projecting rails, that he was unsuccessful in so doing, and that the right front wheel of the coupé came in contact with the easternmost rail, which projected some 51/212 to 7 inches above the surface of the ground at that point. The evidence also showed that the sudden striking of the right front wheel of the automobile with the projecting rail caused both doors of the automobile to fly open and the deceased to be thrown from the coupé, thereby suffering injuries which later caused his death. The questions of the alleged negligence of the county of San Bernardino in the above-mentioned regard and the alleged contributory negligence of the deceased were questions which were to be answered by the trial court from the facts and circumstances disclosed by the evidence presented to it. The court, unaided by a jury, has performed this duty and has answered the questions adversely to the appellant county, and we do not find ourselves impelled to declare that it has arrived at an erroneous conclusion from the record here presented.
The appellant county points to the fact that the evidence presented during the trial showed that no other accident of the character which caused the injuries here complained of had occurred at the Bryn Mawr crossing for a period of two years. From this it is argued that the trial court evidently accepted the evidence of the accident which resulted in Schwanekamp's death as proof of the fact that the failure to obstruct the highway or to post a warning sign constituted negligence. In thus attacking the finding of negligence, it is confidently asserted that the mere fact that an accident occurred was not sufficient alone to raise a presumption of negligence.
With respect to this particular contention, it may be conceded that proof of the occurrence of the accident might not, standing alone, suffice to raise a presumption of negligence. It was, however, some evidence which tended to show that a dangerous condition with respect to the highway existed at Bryn Mawr crossing. Hook v. City of Sacramento, 118 Cal. App. 547, 552, 5 P.(2d) 643. Appellant's evidence that no similar accident had occurred for a number of years prior thereto was addressed to the proposition that the place was not dangerous. It is apparent that upon this point, therefore, the evidence was conflicting, and that the trial court resolved the conflict in respondent's favor. No citation of authorities is required to support the familiar rule of appellate procedure that a finding of fact which is based on conflicting evidence may not be disturbed by a reviewing court. Furthermore, it must be observed that the mere fact of injury was not the only evidence before the trial court which tended to show that a dangerous condition existed at the crossing. The court also had the testimony of the deceased man's companion at the time the accident occurred, which portrayed the circumstances immediately surrounding the occurrence of the accident.
There is some suggestion that because of the fact the respondent originally joined certain officers of San Bernardino county as defendants in the action and judgment was rendered in favor of these officers upon the sustaining of a general demurrer in their behalf to the complaint, which judgment was affirmed on appeal, therefore the judgment against appellant may not here be affirmed, since the county's agents who were responsible for the condition of county highways have been thus absolved of liability. This argument is based on the familiar doctrine of agency that, in order to hold the principal liable for the agent's tort, the liability of the agent must first be established.
The record shows that when this action was first instituted, James W. Cole, the highway commissioner of San Bernardino county, and Charles Long, a district highway commissioner, were joined as defendants therein, and that recovery of damages was sought against them jointly with their codefendants, the appellant county and the Southern Pacific Company. The above-named officers of appellant and appellant demurred to the complaint. The demurrer was sustained with leave granted to respondent to amend the complaint. Thereafter, on application of respondent, the order sustaining the demurrer of the officers of the county and granting leave to amend was so modified that leave to amend was eliminated from the order. Thereupon judgment dismissing the action as to the officers of the county was duly entered. At a somewhat later date, respondent having failed to amend his complaint, so far as the appellant county was concerned, within the time specified in the court's order sustaining the demurrer, judgment of dismissal was entered in favor of appellant. From both of the above-mentioned judgments respondent herein, William F. Adams, appealed. On this appeal the judgment dismissing the action as to the officers of appellant was affirmed on the ground that Adams, having requested that the demurrer of the county officers be sustained without leave to amend, necessarily consented to the rendition of the judgment in their favor and could not therefore object to the judgment by appealing from it. The judgment dismissing the action as to the county of San Bernardino was, however, reversed on the ground that the complaint stated a cause of action against the county. Adams v. Southern Pacific Co., 109 Cal. App. 728, 293 P. 681.
We think that it may not now be successfully urged that because the respondent consented to the entry of a judgment in favor of the county officers on the sustaining of a general demurrer to his complaint he thereby lost his right to seek a recovery against the county. It is obvious that, so far as the county is concerned, his cause of action is based on the provisions of section 2 of the above-mentioned Act 5619. The allegations of the complaint show that such was the case, and the record indicates that the suit was tried on the theory that the county's liability could only be maintained by virtue of this particular statute. This section of the act does not purport to give a right of action against any officer of a county. Its scope is limited specifically to conferring a right of action against certain designated public corporations for specific acts of negligence relating to a dangerous or defective condition of public streets, highways, buildings, grounds, works, and property. The scope of the section is further restricted by the limitation that knowledge or notice of the defective or dangerous condition shall be a prerequisite to the imposition of liability. As was said by Mr. Justice Langdon in Watson v. City of Alameda, 219 Cal. 331, at page 333, 26 P. (2d) 286, 287: “The municipality is not, under this statute, liable in the same manner as a private corporation, for negligence of its employees; nor is it enough to show a dangerous condition of property. The municipality must have had notice and have failed to exercise its opportunity to remedy the condition. The theory of the act seems to be that liability is imposed not alone for the dangerous condition, but for the failure to remedy it, upon knowledge or notice thereof. The elements of knowledge or notice are logically essential to show culpability in failure to remedy the condition, and proof of one or the other is necessary to recovery.” It may further be observed that the liability of public officers, as distinguished from public corporations, for injuries resulting from the defective or dangerous condition of a public street or highway and the conditions under which such liability may be imposed are declared by another statute, to wit, the Act of May 18, 1919 (Stats. 1919, p. 756; Deering's Gen. Laws, 1931, Act 5618). See Shannon v. Fleishhacker, 116 Cal. App. 258, 261, 2 P.(2d) 835.
The appeal of the plaintiff herein is from that portion of the judgment which permitted recovery for the death of plaintiff's intestate in the amount of $1,500. The ground of this appeal is that the amount so specified is inadequate and insufficient. In support thereof, it is contended that the trial court should have allowed an additional amount of $1,164.02 for the funeral and burial expenses of the deceased, which were shown to have been incurred and paid. The sole problem presented on this appeal is therefore whether, under the facts and circumstances of this case, recovery may be properly allowed for furneral and burial expenses which the trial court found were reasonable and proper, and which were shown to have been incurred and paid.
In entering upon a consideration of this problem, it should be observed that certain established legal principles are pertinent. In the first place, it must be borne in mind that we are here dealing with a tort action. The plaintiff has undertaken to show that he has been injured through the wrongful act of another. The measure of damages which is declared in section 3333 of the Civil Code is therefore applicable. This statute provides that the injured party is entitled to be compensated for all the detriment proximately caused by the wrongful act, whether such detriment could have been anticipated or not. In the second place, it must be conceded that we are here dealing with a peculiar kind of tort action. The plaintiff is the administrator of the estate of a deceased person, and this action has been brought to recover damages for the death of the deceased, which is alleged to have been caused by the negligence of the defendant. The action, therefore, is controlled by the provisions of section 377 of the Code of Civil Procedure. This statute not only confers a right of action for wrongful death, but provides the measure of damages. It is there declared that in an action for wrongful death “such damages may be given as under all the circumstances of the case, may be just.” The breadth of the language employed would appear to provide a wide latitude in the admeasurement of damages. Due to this fact, it has been held that the statute should receive a broad construction. Bond v. United Railroads, 159 Cal. 270, 277, 113 P. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50; Brown v. Beck, 63 Cal. App. 686, 697, 220 P. 14. However, it has also been declared and must be regarded as settled that the damages which are recoverable in an action of this character for the death of the victim are limited to the pecuniary loss suffered by the person or persons for whose benefit the right of action is given. Morgan v. Southern Pacific Co., 95 Cal. 510, 516, 30 P. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Sneed v. Marysville Gas, etc., Co., 149 Cal. 704, 710, 87 P. 376; Johnson v. Southern Pacific R. R. Co., 154 Cal. 285, 298, 97 P. 520; Hale v. San Bernardino, etc., Co., 156 Cal. 713, 716, 106 P. 83; Bond v. United Railroads, supra; Diller v. Northern Cal. Power Co., 162 Cal. 531, 123 P. 359, Ann. Cas. 1913D, 908; Parsons v. Easton, 184 Cal. 764, 195 P. 419; Cossi v. Southern Pacific Co., 110 Cal. App. 110, 293 P. 663.
In giving consideration, therefore, to the contention of the appellant on this appeal, that the trial court erred to his prejudice in refusing to include in the judgment the amount which it had found was a reasonable and proper amount expended for the funeral and burial of the victim, the important question which is presented is whether or not it may properly be declared that the money thus expended constituted an item of pecuniary loss to the person for whose benefit the action was instituted. Fortunately, there is no dispute as to the factual background upon which this question is presented.
The record shows that the father of the deceased is his sole heir. It also appears that a special administrator of the estate of the son was appointed in the state of Wisconsin. It further appears that the son had a policy of insurance on his own life, which was payable to his estate, and that after his death the Wisconsin administrator collected the amount due on the life insurance policy and from the proceeds paid the funeral and burial expenses, including the expenses incident to removing the body of the deceased from California to Wisconsin for burial.
From these facts it is difficult to understand how it may be successfully contended that the funeral and burial expenses of the deceased constituted a pecuniary loss suffered by the father which could properly be included as an item of damage recoverable in this action. For the purposes of this opinion, it will be assumed that, generally speaking, funeral expenses are recoverable in actions of this character, and that this is the rule in California. It does not, however, follow therefrom that such expenses are always so recoverable. The established rule limiting recovery in death cases to the pecuniary loss sustained by the beneficiary of the statute must be borne in mind, and the circumstances of the particular case must be measured by this rule.
Since it is not disputed that the funeral and burial expenses of the deceased were paid from the proceeds of a life insurance policy which was payable to his estate, we think that it may not be urged that these expenses constituted a pecuniary loss to the father, his sole heir, which occurred by reason of the son's death. Actually, it is obvious that in the payment of such expenses the father suffered no pecuniary loss whatever, since they were paid, not by the father, but by the administrator of the son's estate from money belonging to the estate which came into his hands as administrator. That such expenses constituted a proper charge against the estate for which the estate was primarily liable is not open to doubt. Probate Code, § 950. Appellant argues that the payment of such expenses constituted a pecuniary loss to the father because thereby the amount which he is entitled to receive as sole heir of the deceased is reduced. This may be conceded. Nevertheless, the fact remains that the father did not himself pay these expenses, and it may not therefore be declared that in their payment the father suffered a pecuniary loss. Conceivably, the expenses of administration of the son's estate will further reduce the amount which the father will receive as sole heir of the son, but we cannot imagine and it is not contended that such expenses, constituting a proper charge against the estate, are recoverable as an item of damage in this action.
In giving consideration to the claim that the funeral expenses should have been included as an item of damage, it should further be borne in mind that the heir of a deceased for whose death an action of this character is maintained does not take the money awarded by succession as an heir. He is entitled to take the money as the beneficiary of a statute which expressly confers upon him a right of action. Burk v. Arcata, etc., R. R. Co., 125 Cal. 364, 368, 57 P. 1065, 73 Am. St. Rep. 52. The amount recovered in such an action constitutes no part of the estate of the deceased, and where the action is brought, as is the case here, by the personal representative of the deceased, such personal representative acts solely as a statutory trustee for the benefit of the heirs on account of whom the recovery is had. Ruiz v. Santa Barbara, etc., Co., 164 Cal. 188, 191, 128 P. 330; Estate of Riccomi, 185 Cal. 458, 461, 197 P. 97, 14 A. L. R. 509. When, therefore, it appears, as it does here, that funeral and burial expenses of a deceased, whose death has been caused by the wrongful act or neglect of another, have been paid from money belonging to the decedent's estate, the heir who is given a statutory right of action to recover damages for the death has manifestly suffered no pecuniary loss because of the payment of such expenses. In such a case, the heir occupies a dual position. He is entitled by succession to take whatever balance remains in the estate after proper claims for which the estate is liable have been paid, and he is entitled as the designated beneficiary of the statute to recover the exact amount of actual pecuniary loss which he is able to show he has suffered by reason of the death. He is clearly not entitled to increase the amount of damages by including therein money which he did not himself pay, but which was rightfully and properly paid from the funds of the estate. We can see no difference in principle from the situation which is here presented and that which would have been presented if the deceased, prior to his death, had deposited with an undertaker an amount of money ample to pay all expenses that were here incurred with the instruction that the undertaker should, in the event of his death, provide the articles and services required for his funeral and for his burial, including the expense of transporting his body to his native state, and pay such expenses out of the fund thus deposited. In effect, the deceased accomplished this result by insuring his life in an amount more than sufficient to pay funeral and burial expenses, and by directing that the beneficiary of the policy should be his estate.
For the reasons stated, the judgment from which these appeals have been taken is in all respects affirmed.
JENNINGS, Justice.
We concur: BARNARD, P. J.; MARKS, J.
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Docket No: Civ. 1530.
Decided: April 29, 1935
Court: District Court of Appeal, Fourth District, California.
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