This action was brought by plaintiff for the negligent killing of her son by defendants while said son was at work as a plumber in the Call Building on the thirtieth day of September, 1897. The son was at work in a certain shaft at the rear of the elevator shaft on the second floor. In the same shaft, above, at about the seventeenth floor, an employee of appellants named Johnson was engaged in fastening an iron ladder in place by means of iron anchors, and the evidence indicates that it was by Johnson dropping one of these anchors down the open shaft that the son came to his death. The plaintiff, upon a trial and verdict in her favor for $2,250, had judgment for that amount. The appeal is from this judgment and from an order denying a new trial.
1. The first point made on the appeal is, that there was no evidence to show that Johnson was in the employ of appellants at the time of the injury. This point is not tenable, in view of the first allegation of appellants' answer as follows: —
"These defendants deny that on the thirtieth day of September *Page 319 1897, or on any other day, the defendants, or any, or all of them, except as hereinafter appears, were engaged in the construction of an iron stairway or ladder in the building known as the Call or Claus Spreckels Building. . . . And in that behalf these defendants allege that on or about the thirtieth day of September, 1897, the defendants E. Coppieters, J.T. McCormick, and St. John E. McCORMICK, were copartners doing business in the said city and county of San Francisco, under the firm name and style of the California Artistic Metal and Wire Company; that on said day the said copartnership were engaged, as independent contractors, in the construction of an iron ladder in a certain shaft or pipe-well in that certain building then in the course of erection at the southwest corner of Market and Third streets in the said city and county of San Francisco, which said building is now known as the Claus Spreckels Building; that on said day the defendant Martin Johnson was employed by said copartnership, and was engaged by them, and as their employee was at work in the construction of said iron ladder at a point in said building at or between the seventeenth and eighteenth floors thereof."
The complaint charged "that through the negligence and carelessness of the defendants and their servants, a piece of iron fell, and was negligently and carelessly caused by the defendants to fall," etc. It is clear from an inspection of these pleadings that when they were drawn the appellants had no thought of avoiding responsibility for the death of Murphy on any theory that Johnson was not their servant, but that he was their servant in the work in the performance of which the death was caused is affirmatively pleaded by them in a verified answer. A new trial can hardly be granted for failure to prove a fact so clearly admitted by appellants. "A party who, formally and explicitly, admits by his pleading that which establishes the plaintiff's right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission. No application was made to the court to be relieved from the effect of this admission, or to weaken or modify its full import. After such an admission it was not necessary for the plaintiff to prove it, nor would it be permitted to the defendant to deny it."(Paige v. Willet, 38 N.Y. 31; see, also, McCREERY v. Everding,44 Cal. 284; *Page 320 Jones v. Spears, 47 Cal. 20.) It having been admitted, then, that Johnson was in the employ of appellants, and there being evidence to go to the jury tending strongly to show that while so admittedly engaged in the service of appellants he negligently let fall an iron appliance and killed Murphy, his employers were liable for his negligence in that regard, whether they were present at the time or not.
Nor was it necessary to bring suit against appellants as copartners, for when a cause of action for tort exists against a copartnership the several partners may be sued individually, if so preferred. We quote from Lindley on Partnership (page 283): "Supposing a tort to be imputable to a firm, an action in respect to it may be brought against all or any of the partners. If some of them only are sued, they cannot insist upon the other partners being joined as defendants, and this rule applies even where the tort in question is committed by an agent or servant of the firm, and not otherwise by the firm itself."
2. That Murphy died of the injury alleged in the complaint was conceded by attorney for appellants upon the trial; further testimony on the subject after such a concession was perhaps immaterial, but we are at a loss to see how it could have harmed appellants. We therefore think there was no prejudicial error in permitting Dr. Gallagher to testify that the wound he found on Murphy's head was of a nature liable to cause death.
3. There was no error in refusing to strike out of Duffy's testimony a statement showing where Johnson was working, as follows: "Yes, sir; he was working directly over where Murphy was struck." This answer was clearly pertinent to the subject then under inquiry, which was as to where Johnson was working with reference to the position occupied by Murphy when the latter was killed. The fact that this statement of the witness was perhaps not a direct answer to the previous question asked can make no difference as to the relevancy of the statement that fell from the lips of the witness. The witness spoke from his own knowledge and observation, and his statement was clearly competent evidence.
4. The objection of appellants to an instruction given the jury because there was no evidence that Johnson was employed by the other defendants, and therefore no evidence *Page 321 upon which to base an instruction on that subject, is already disposed of by the reference to the admissions of appellants' answer.
5. Appellants requested the court to instruct the jury as follows: "The law does not contemplate that the damages awarded the plaintiff, if any are awarded to her, should be a compensation to her heirs, or to any other person or persons." The action was not brought to compensate plaintiff's heirs, but to compensate plaintiff alone, and the jury were in substance so told by the court in an instruction. We can therefore see no useful purpose that might have been served by the requested instruction, and think the court very properly rejected it.
The judgment and order appealed from should be affirmed.
Cooper, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Harrison, J., Garoutte, J., Van Dyke, J.