Milosevich

Plaintiffs are the surviving widow and minor children of Vojko Milosevich, deceased, and as such instituted this action against the defendant to recover damages for the death of the said Vojko Milosevich. The action was tried by a jury and a verdict rendered for $5,000 in plaintiff’s favor, and upon this verdict judgment was entered accordingly. Defendant appeals.

Vojko Milosevich was in the employ of the Los Angeles Gas and Electric Corporation, and while in the employ of this company, and while acting within the course and scope of said employment, was struck and killed by an electric car owned and operated by defendant. The complaint alleges that the defendant was negligent in the operation of its car, and due to such negligence the deceased met his death. The defendant, in its answer, denied negligence on its part, and alleged that the deceased was guilty of contributory negligence which was the proximate cause of his death. In addition to its original answer, the defendant, by leave of court, filed an amendment thereto, in which amendment defendant alleged, among other things, that through a proceeding instituted by plaintiff, before the Industrial Accident Commission of the…

I concur in the judgment. I am not definitely satisfied that in an action of this kind, prosecuted by the dependent survivors of an employee as sole plaintiffs, against a person other than the employer (an action wherein, as the statute provides, the amount of compensation paid by the employer is not permitted to be shown), the employer will in every case be entitled to apply for and obtain an order establishing a lien in his favor for the amount of compensation paid by him. It will possibly be a defense to such application, that the employer’s contributory negligence was a concurring proximate cause of the damage suffered. But if so, that will be a question between the plaintiffs and the employer. In order to make sure that the right of action in a case like this shall not be affected by any compensation claim against the employer, the statute has apparently excluded from the trial of the controversy between the plaintiffs and the defendant herein any consideration of the amount of compensation paid by the employer. The amount being thus excluded, the plea of contributory negligence of the employer could not affect the amount of the verdict, or be used at all unless to defeat the…