— I dissent.
I cannot agree with the reasoning of the majority that the *204contributory negligence of a decedent either should, or must, be imputed to the heirs of said decedent in a wrongful death action.
The cause of action for wrongful death is wholly statutory; it is entirely separate and distinct from any cause of action which the decedent (had he lived) might have had (Bond v. United Railroads, 159 Cal. 270 [113 P. 366, Ann. Cas. 1912C 50, 48 L.R.A.N.S. 687] ; McLaughlin v. United Railroads, 169 Cal. 494 [147 P. 149, Ann.Cas. 1916D 337, L.R.A. 1915E 1205]; Clark v. Qoodwim, 170 Cal. 527 [150 P. 357, L.R.A. 1916A 1142]).
The majority opinion, speaking of the three amendments to section 377 of the Code of Civil Procedure, states that “At no time, however, has contributory negligence been abolished as a defense. ’ ’ Contributory negligence was never specifically mentioned by the section as a defense — although the appellate courts assumed that contributory negligence on the part of the decedent would bar recovery by his heirs or personal representative. The language in the original enactment which could have been said to imply that the decedent’s contributory negligence was a defense to an action brought by the personal representative was deleted when section 377 of the Code of Civil Procedure was enacted giving to the heirs also the right to sue. Judge Paul Nourse (42 Cal.L.Rev. 310 et seq.) points out that “Upon the grounds that the cause of action for wrongful death is a new cause of action and separate and distinct from any cause of action that the deceased might have had, it has been uniformly held that the admissions of the decedent against his interests and which might tend to establish his negligence, are not admissible against his heirs in an action brought under Section 377 of the Code of Civil Procedure [Hedge v. Williams, 131 Cal. 455 [63 P. 721, 64 P. 106, 82 Am.St.Rep. 366] ; Marks v. Reissinger, 35 Cal. App. 44, 54 [169 P. 243] ]. It seems anomalous to hold that the negligence of the decedent will defeat a cause of action for his death, and to hold that his own admissions may not be used as proof of his negligence.
“The Legislature not having made the decedent’s freedom from negligence a condition upon the cause of action which it created, the Courts are without power to graft such conditions upon that cause of action. To do so would be to amend the statute by judicial decree. [ Cal. Const., art. III, § 1; Allen v. Allen, 95 Cal. 184 [30 P. 213, 16 L.R.A. 646] ; Moore *205v. United States F. & G. Co., 122 Cal.App. 205 [9 P.2d 562] ; Chester v. Hall. 55 Cal.App. 611, 615 [204 P. 237].] ”
Section 1714 of the Civil Code is the section which contains the defense of contributory negligence. That section provides that “Everyone is responsible, not only for the result of his wilful acts but also for injuries occasioned to another by his want of ordinary care or skill . . . except so far as the latter has, wilfully or by want of ordinary care, brought the injuries upon himself. ...” (Emphasis added.) Judge Nourse notes that “It is clear that there is nothing in the section which allows one, who through negligence has injured another, to escape liability because someone other than the person injured by his negligence contributed to that injury. Yet this is what occurs when a defendant tortfeasor is permitted to plead the negligence of the decedent in an action for wrongful death founded upon Section 377 of the Code of Civil Procedure. It is the heirs of the decedent who have suffered pecuniary loss, who are the persons injured by the act of the tortfeasor. Certainly it cannot be said that the widow and minor children of a man killed by the negligence of another have, in the words of Section 1714, ‘ wilfully or by want of ordinary care brought the injuries’ upon themselves.” (Emphasis added.)
Judge Nourse notes that the reasons given for the defense of contributory negligence in the decided cases have no application to an action for wrongful death. Quoting from Fujise v. Los Angeles Ry. Co., 12 Cal.App. 207, 211 [107 P. 317], it appears that “In order that contributory negligence shall prevent the recovery of damages for a personal injury, it must appear that the negligence is that of the injured person or of someone over whom he exercised some control. . . . The reason for the rule which so relieves the defendant from the payment of damages for his negligence where the plaintiff has contributed to the injury by his own negligence, as it is applied in this state, is based upon an argument of convenience, to wit, the impossibility of successfully apportioning the damages between the parties, and not for the reason that the law relieves the defendant from responsibility merely because the injured party has contributed to the result by his own negligence or wrongful act.”
Judge Nourse points out that in an action for wrongful death the plaintiff's have brought no injury upon themselves. The fact that the person, whose death gives rise to their cause of action, has by his own negligence, in some degree “however slight” contributed to his own death, is, under the language *206of the court just quoted, or under the provisions of section 1714 of the Civil Code of no more moment than the contributing negligence of some third person.
An additional distinction between the ordinary tort action and a wrongful death action are the damages recoverable: In the ordinary personal injury action, the plaintiff recovers for medical expenses, pain or suffering, together with compensatory damages; in a wrongful death action, the heirs may recover damages for the injuries they have sustained: loss of support, society, comfort and protection.
Judge Nourse “submits” that the basis for the defense of contributory negligence is entirely lacking in an action for wrongful death even though the cases dealing with actions under section 377 of the Code of Civil Procedure have held that contributory negligence was a defense. He says that if the cases are wrong, this court should not hesitate to overrule them.
I agree with the logic and reasoning set forth by Judge Nourse; I feel that the cases holding contributory negligence a defense in wrongful death actions are wrong and should be overruled and that the error should not be perpetuated as is being done in the instant case.
I also disagree with the majority in its holding that the failure of the trial court to obey the clear mandate of section 601 of the Code of Civil Procedure was not prejudicial error. The evidence was in sharp conflict concerning the person responsible for the negligence which caused the death of plaintiffs’ decedent. The jury returned a defendants’ verdict. We are told by the majority that plaintiffs made no “affirmative showing” that any of the jurors were biased, prejudiced, or unfit to serve as jurors. As a matter of fact, it would be impossible to tell the effect the juror in question had on the adverse verdict returned by the jury. It was also impossible for the plaintiffs to show “affirmatively” that the juror in question contributed to the loss of the case. The problem involved here does not fall under the provisions of section 657, subdivision 2, of the Code of Civil Procedure, and even if plaintiffs had produced jurors’ affidavits of bias or prejudice on the part of the challenged juror it would have availed them nothing.
It is well settled that affidavits or evidence of any character concerning the mental attitude of either concurring or dissenting jurors which tend to contradict, impeach or defeat their verdict are inadmissible. (Murphy v. County of Lake, *207106 Cal.App.2d 61 [234 P.2d 712] ; Barrett v. City of Claremont, 41 Cal.2d 70 [256 P.2d 977) ; Marino v. County of Tuolumne, 118 Cal.App.2d 675 [258 P.2d 540] ; Anderson v. County of San Joaquin, 110 Cal.App.2d 703 [244 P.2d 75|.) Even affidavits or testimony of third persons offered to prove admissions of jurors to impeach the verdict are not countenanced. (Noble v. Key System, Ltd., 10 Cal.App.2d 132 [51 P.2d 887].) In fact, the authorities are uniform to the effect that affidavits or oral evidence of either concurring or dissenting jurors may not be received to contradict, impeach or defeat their verdict, except to show that the verdict was secured by chance. (Crabtree v. Western Pac. R. Co., 33 Cal. App.2d 35 [90 P.2d 835] ; Johnson v. Gray, 4 Cal.App.2d 72 [40 P.2d 575] ; Toomes v. Nunes, 24 Cal.App.2d 395 [75 P.2d 94] ; Phipps v. Patterson, 27 Cal.App.2d 545 [81 P.2d 437] ; Gray v. Robinson, 33 Cal.App.2d 177 [91 P.2d 194].)
In view of the settled law of this state as announced in the foregoing authoriites it is difficult for me to devise a means or method whereby appellant could have made a showing of prejudice to his case as the result of the admittedly erroneous ruling of the trial court against him. The record discloses that he was denied his statutory right to the exercise of a peremptory challenge. This the majority concedes. The verdict of the jury was against him notwithstanding the conceded fact that the evidence was sufficient to support a verdict in his favor. Since it was not possible under the rules of law above announced for appellant to have made a showing as to what took place in the jury room or of the state of mind of the juror he sought to challenge, it is obvious that there is no basis in law or fact for the statement of the majority that appellant was required to make an affirmative showing that he was prejudiced as the result of the error committed by the trial court in denying appellant his statutory right to exercise the peremptory challenge here in question in order to obtain a reversal of the judgment.
In view of the foregoing it is obvious that the approach of the majority to the problem here involved is wholly unrealistic. If the majority is right in this case, then a trial judge may announce at the beginning of the trial or at any time during the trial that neither party may exercise any peremptory challenge, and although an exception is taken to the ruling and either or both parties seek to impose peremptory challenges and are denied the right to do so by the court, this court could hold that since there is no showing of preju*208dice by the party against whom the verdict was rendered, a judgment rendered thereon must be affirmed, thus abrogating the statutes which allow peremptory challenges to jurors as a matter of right in both civil and criminal cases. I have no doubt that every trial lawyer will be shocked to learn that such is the law of this state.
None of the authorities cited in the majority opinion supports the view expressed therein on this point. In none of those cases was a party denied the right to exercise a peremptory challenge where he admittedly had the right to impose such challenge as in the ease at bar. It is true that there is some loose language in some of those cases to the effect that where a party challenges the ruling of the trial court with respect to the qualifications of a juror, he must make an affirmative showing that the ruling of the trial court was prejudicial to him, but this is a far cry from holding that where the trial court arbitrarily denies a party the statutory right to exercise a peremptory challenge, he must in some manner not disclosed by the majority opinion here nor in any of the authorities cited, make an affirmative showing of prejudice in order to obtain a reversal of a judgment entered upon a verdict adverse to the party denied such right.
Because of the prejudicial error committed by the trial court in denying plaintiffs their statutory right to a peremptory challenge and because I firmly believe that contributory negligence is not, nor should it be, a defense in a wrongful death action, I would reverse the judgment. '
Appellants ’ petition for a rehearing was denied November 4, 1955. Carter, J., and Traynor, J., were of the opinion that the petition should be granted, and Carter, J., filed the following opinion:
CARTER, J.— The majority of this court has modified its opinion and denied a rehearing in this case notwithstanding the fact that the petition for rehearing pointed out that never before has an appellate court in this state held that the denial of the right to exercise a peremptory challenge is a mere error in procedure which may be cured by the application of section 4V2 of article VI of the Constitution of California and that numerous cases holding to the contrary were not even mentioned in the majority opinion. As counsel for appellant point out in their petition for rehearing there is a long and unbroken line of well considered opinions of this court and the District Courts of Appeal holding squarely that the right to *209challenge peremptorily is absolute, and not qualified by the necessity of showing injury. This rule was reannounced as late as July 27th, 1951 in the case of People v. Diaz, 105 Cal. App.2d 690, 696 [234 P.2d 300] (hearing denied by this court without dissenting vote) where the District Court of Appeal said: 11 The denial of the right of peremptory challenge cannot be said to be a mere matter of procedure. The right is absolute. (People v. Helm, 152 Cal. 532, 535 [93 P. 99].) It is a substantial right. It has been said that it is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the Legislature. (People v. Edwards, 101 Cal. 543, 544 [36 P. 7].) As said by the Supreme Court of the United States in Hayes v. Missouri, 120 U. S. 68 [7 S.Ct. 350, 30 L.Ed. 578, 580], experience has shown that one of the most effective means to free the jury box from persons unfit to be there is the exercise of the peremptory challenge. The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury.” (Emphasis added.)
Numerous other decisions, quoted in the decisions cited in People v. Diaz, supra, reiterate as a constitutional dogma that under our jury system, the right to peremptory challenge is absolute and an ‘1 inseparable and inalienable part of the right of trial by jury guaranteed by the Constitution.”
The majority of the court has recognized this principle in theory, but has just as effectively denied it in practice.
Upon the authority of People v. Estorga, 206 Cal. 81 [273 P. 575], and People v. Hickman, 204 Cal. 470 [268 P. 909. 270 P. 1117], this court has qualified the right and requires an ‘1 affirmative showing” of bias or prejudice. In neither of the above cited cases was a party deprived of a peremptory challenge. These two cases can therefore be no authority or precedent for the holding of this court.
In applying the provision of section 4%, article VI, of the California Constitution, which applies to procedural defects, and not to errors of substantive law, this court has in effect overruled a number of precedents of this court holding directly to the contrary, that the provisions of section 41/2, article VI, California Constitution, do not apply where the right to peremptory challenge has been abridged.
In People v. Carmichael, 198 Cal. 534 [246 P. 62], the *210court, referring to article VI, section 4% of the Constitution, declared, page 547: “It was never intended by this provision of the constitution to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right. (People v. Wismer, 58 Cal.App. 679, 688 [209 P. 259]).”
In People v. Wismer, 58 Cal.App. 679 [209 P. 259], after the defendant had exercised all of his peremptory challenges, he was compelled to accept a juror who was disqualified by reason of actual bias. The court held, page 687: ‘ ‘ Section 4% of article VI of the constitution has no application to the situation presented here. The right of trial by jury is fundamental — a right which came to us from the common law and as such guaranteed by the constitution — and inseparably connected therewith (indeed, it is of the very essence thereof) is the right to a trial by a jury consisting of unbiased and unprejudiced persons.”
In People v. Bennett, 79 Cal.App. 76, the court stated, page 91 [249 P. 20] : “And it should always be remembered that, in the trial of a criminal case, any act or action of a trial court which must necessarily have the effect of denying to the accused a trial by a fair and impartial jury will not be excused or mitigated by the terms of section 4% of article VI of the constitution. The right of trial by jury is fundamental. ’ ’
In People v. O’Connor, 81 Cal.App. 506 [254 P. 630], the defendant was denied the right to exercise the number of peremptory challenges to which he was entitled under the statute. It was contended that section 4% of article VI applied. The court said, page 520: “As generally defined ‘procedure’ includes in its meaning whatever is embraced by the three technical terms, pleading, evidence, and practice. (32 Cyc. 405.) Had there been no denial of the exercise of any peremptory challenges, we seriously question whether this section has any application to the cause before us. This section must refer to pleading and procedure, as authorized by the codes. Thus, to make it applicable to the pleadings, had there been any defects in the informations not affecting the substantial rights of the parties, as accorded by law, then, and in that case, the error should be held harmless. Likewise, if the court omitted to follow the procedure embodied by the codes for the arraignment and trial of the defendants upon the informations filed against them and had committed some error in so doing, which did not affect the substantial rights *211of the parties, then such error in procedure would likewise be held harmless, bid, it cannot reasonably be held that section 41/2 of article VI is so broad in its meaning as to permit the trial court to disregard the usual and ordinary procedure in the trial of a cause and adopt a new and entirely different manner from that recognized by law. Such a course is not a mistake in procedure; it is a substitution of procedure. What ivould excuse a mistake in procedure would not and could not be held to allow the creation of a course unprovided for by law. Mistake is one thing; a substitution is an entirely different thing.” (Emphasis added.)
It is abundantly clear from the above cited authorities that section 4y2 of article VI, since it relates to procedure, has no application where the right to peremptory challenge has been interfered with. Yet, the majority here, without citation of authority in support of its position holds that simply because "the jurors were polled and were unanimous in their verdict” the error in denying appellant his right to exercise a peremptory challenge was cured by section 4% of article VI of the Constitution. The majority arrives at this conclusion even though it concedes that the evidence produced on behalf of appellant was amply sufficient to support a verdict and judgment in his favor.
There can be no question whatsoever that, so far as appears from the face of the majority opinion, the conclusion that no miscarriage of justice resulted was not based on a review of all of the evidence in the ease but solely on the ground that there was no affirmative showing that any juror who served was biased or otherwise unfit. Of course, it is obvious from a consideration of the authorities cited in my dissenting opinion heretofore filed in this case that such a showing would be virtually impossible in view of the law relating to the unimpeachability of verdicts. But the majority does not attempt to meet this argument, but blindly invokes the provisions of section 4% of article VI of the Constitution because the jury was unanimous in its verdict in favor of defendant.
In so holding, it is obvious that the majority do not appreciate the significance of the right to a peremptory challenge. This challenge has always existed in our law0 and has a very salutary purpose. It enables the litigant to remove from the jury box a prospective juror who has failed to disclose his true mental state and who may possess deep seated prejudices against the litigant or his ease which the prospective juror will not admit on voir dire examination. The right to remove *212such a prospective juror, without disclosing the reason therefor, is a basic fundamental right guaranteed by the statutes of this state and is known and recognized by all trial lawyers to be one of the most important safeguards against the selection of those for jury duty who are disqualified because they possess a state of mind adverse to the party exercising the challenge which" cannot be disclosed by voir dire examination. The assumption of the majority that one prejudiced juror could not bring about a unanimous verdict against a party in the face of satisfactory evidence in his favor when he has been denied the right to challenge the prejudiced juror, is not borne out by either theory or practical experience. Those who have had experience in the trial of jury eases appreciate the importance of eliminating from juries those who have preconceived notions as to what result should be reached regardless of the evidence, and many tales have been told and more remain untold of how one or two overzealous jurors have brought about a verdict against the weight of the evidence. In this connection I cannot refrain from repeating the warning I so often heard from my venerable father that one rotten apple will spoil the whole barrel. While this was applied to an occasional bad boy in the community, it is just as applicable to jurors or other small groups.
It is traditional in our judicial system that the jury selected to try a case should be fair and impartial. The Legislature has endeavored to prescribe a system for the selection of juries which will as nearly as possible guarantee to litigants a jury composed of fair and impartial persons. This court has held unanimously in this case that the system provided by the Legislature for the selection of juries was not followed in this case. That there was a substantial departure from the system so prescribed there can be no question. Such being the case, the plaintiff was not accorded the type of jury trial guaranteed by the laws of this state. The majority concedes that this was error. There is only one way to cure' this error and that is to grant plaintiff a new trial. To do otherwise is to deny to plaintiff the equal and exact justice to which he is entitled, by the verdict of a jury impartially selected, which Thomas Jefferson declared to be one of the principles which “form the bright constellation which has gone before us.” (First Inaugural Address, March 4, 1801.)