I dissent. There are two, and only two, questions presented by this appeal, but the judgment of the superior court has been twice affirmed, — first in Department, and now in Bank, — without any decision of the first, and without any discussion, and even without a plain statement of the second.
The appellant, to sustain her appeal, must establish two propositions: 1. If a man's death is caused by the wrongful act or neglect of another, and he leaves surviving him a wife and living child, and the wife sues alone for the damages recoverable under section 377 of the Code of Civil Procedure, a recovery by her in that action is not a bar to another action by the child; and 2. A child conceived, but not yet born at the time of the father's death, or at the time of the judgment in favor of the mother, has in this respect the same rights as a child living at the time of the father's death.
In both the Department and Bank opinion the first of these propositions is somewhat discussed with the apparent purpose of deciding against it, but in the end that line of reasoning is abandoned and a decision of the point expressly reserved, the appeal being disposed of upon the sole ground that whatever may be the right of a living child in such case, a posthumous child has no such right, because the latter is a part of the mother, and she is the sole heir of her deceased husband.
Neither the first nor the final opinion quotes the language of section 29 of the Civil Code or makes any attempt to show how it can be construed to mean the exact opposite of what it plainly says: "A child conceived, but not yet born, is to be *Page 484 deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth."
Why does not this plain declaration of the statute place a posthumous child upon the same footing with a living child with respect to an action under section 377 of the Code of Civil Procedure? If it would ever be necessary for the interests of a living child to prosecute a separate action after a recovery by its mother, how can it be less the interest of a posthumous child to prosecute the action? Is it again denied that the posthumous child is heir to its father? Has it less interest in the amount recoverable as compensation for the loss of family support? Is it better able than a living child to intervene in the first action? Is there some ground of estoppel against it that could not be urged against the suit of the living child? Is he participant of his mother's fraud in concealing his existence?
These and similar questions affecting the decision of the second point have been asked. Not one of them has been answered. The point is decided, but the reasons are withheld.
As to the first proposition above stated, my individual opinion is of little consequence, since its decision is reserved by the court, but its affirmance is necessary to sustain my conclusion that the judgment of the superior court should be reversed. Section 377 of the Code of Civil Procedure makes the person whose wrongful act or neglect has caused the death of an adult liable to his heirs for such damages as may be deemed just. The action may be prosecuted by the heirs of the deceased or by his administrator or executor, but in either case the measure of liability is the same, — compensation to the heirs for loss of support in case of a death caused by neglect, compensation with punitive damages added in case of a malicious killing. If the recovery is by the personal representative, he, of course, holds the proceeds of the judgment in trust for the heirs. As to the rule by which such proceeds are to be divided, the law is silent. It may be that they would be treated as part of the residuary estate subject to distribution, and distributed accordingly by the probate court, or it may be that they would fall within the jurisdiction of a court of equity, and be distributed in proportion to the needs of the respective heirs. In either case, however, each heir would *Page 485 have a several interest in the proceeds, and his rights ought not to be barred without his fault. If, therefore, an action is brought by some of the heirs without joining the others, that is not the action which the statute provides for, and it would be dismissed upon demurrer or plea, unless the proper parties were brought in. But if the defendant failed to make the objection in either mode that there was a nonjoinder of necessary parties plaintiff, and suffered a recovery by a part of those entitled to sue, he could not resist a recovery in a subsequent action by the other heirs of their share of the damages, unless he could show that the plaintiffs in the second action were estopped by some fraud or laches on their part. In this case the present plaintiff cannot possibly have been guilty of fraud or laches in connection with the former suit, for she was not born when the judgment was given, and if there was any fault it was the fault of the defendant in failing to make the issue and exact the proof that the mother was the sole heir.
Upon these grounds I dissent from the judgment.