Beatty, C.J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 24th of December, 1900: I dissent from the order denying a rehearing because in my opinion the decision in Department overrules, without mentioning it, the case of Beeson v. Green Mountain Co., 57 Cal. 20. If the doctrine of that case is to be wholly set aside, I think it should be done by the court in Bank plainly and unequivocally, so that hereafter the superior courts may have some certain guide in giving instructions as to the elements of damage in cases of this character. In the Beeson case it was held that in estimating the pecuniary damages to the plaintiff the jury could consider two elements — loss of support and loss of society — and an instruction of the trial court to that effect was sustained. In this case the instruction for the giving of which the judgment is reversed states the same identical proposition, and nothing more. In this respect it differs in the same way and to the same extent that the Beeson case differs from the cases cited as authority in the opinion of the court. In every one *Page 526 of those cases it was held, and with some reason, that the instruction complained of told the jury that in addition to the pecuniary damage to plaintiff they could award damages for loss of society. The charge here does not bear such a construction. It merely tells the jury what the two elements of damage in such cases are.
As to the Beeson case, it may or may not lay down the correct doctrine. Certain it is, however, that it has never been overruled by this court. On the contrary, it has been repeatedly cited and followed, and where it has not been followed the court has been at pains to point out the distinction above mentioned, viz., that the instruction condemned allowed damages for loss of society in addition to all pecuniary damage.
I think the doctrine of the court on this point ought to be made clear.