Rosenbloom

This is an appeal by the defendant, Southern Pacific Company, from a judgment against it for $5,000 in an action by plaintiff to recover damages because of the death of her minor child, alleged to have been caused by the negligence of said defendant.

A motion for nonsuit was granted as to the other defendant in the action, evidently upon the principle that the cause of action did not survive the death of Louis Stout.

The appellant urges, first, that the complaint does not state facts sufficient to constitute a cause of action, in that there is no allegation that the plaintiff’s husband is dead or that he has deserted her, to conform to the requirements of section 376 of the Code of Civil Procedure. This objection goes to the legal capacity of the plaintiff to maintain the action. The defendant and appellant failed to present this objection by demurrer or answer in the trial court. Legal incapacity of the plaintiff to sue is an objection to be presented by demurrer if the fact appears on the face of the complaint and by answer if it does not so appear (secs. 430 and 433, Code Civ. Proc.), and if such an objection is not taken either by demurrer or answer, it must be deemed to…