Slaughter
Slaughter v. Goldberg, Bowen & Co.
Opinion
Lead Opinion
Chipman, J.
The action is for damages resulting from the death of plaintiff’s intestate, alleged to have been caused by defendants’ .negligence.
The complaint alleges the appointment of the plaintiff as administratrix of the estate of the deceased; that, on August 5, 1910, the date of the accident, the deceased was riding his bicycle along a public street in the city of Oakland; that, at the same time, the defendants’ wagons were being driven along the same street; and that the driver of the Goldberg, Bowen & Co. wagon “so carelessly and negligently drove and managed said horses and wagon that by reason of his carelessness and negligence said horses and wagon struck said George V. Slaughter and his bicycle and overthrew the same, throwing the said George Y. Slaughter directly in front of the above mentioned wagon driven by said employee of the Ransome-Crummey Company, and said employee of said defendant Ransome-Crummey Company so carelessly drove and managed said wagon and draught animals driven by him that the wheels of said wagon so driven by him passed over the body of the said George V. Slaughter.”
It is then alleged that, by reason of the matters just stated, the plaintiff, as…
Addendum
We are asked to grant a rehearing in order that we may reconsider the single question: Did the evidence that deceased left heirs, offered and admitted at the trial without objection, cure the failure to allege the fact in the complaint? Whatever answer to this question may be found in the decisions of our supreme and appellate courts, and it must he admitted that in some of them a negative answer finds support, we are satisfied that the rule should be as we have held. If we have erred appellant has a speedy means of redress by petition for hearing in the supreme court.
Inasmuch as section 4½ of article VI of the constitution, as recently amended, was not referred to in the briefs and its effect in cases of this character has not been passed upon, so far as we are advised, we withdraw the citation and all reference to it as authority for our decision.
The petition is denied.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 15, 1915.