After a careful reconsideration of this case, we reassert the conclusion heretofore announced in the opinion by Mr. Justice Shenk and the major portion of said opinion is hereby adopted as a portion of this opinion as follows, to wit:

A spirited and able discussion is indulged in by counsel of certain instructions concerning the measure of damages applicable to the case. The question raised is easily grasped from the following portion of one of the instructions:■ ‘‘If your verdict is for the plaintiff it must be for such a sum as will fairly and fully compensate her and each of decedent’s daughters for the pecuniary loss, if any, which you may find each of them to have sustained by the death of the said Charles T. Gilmore. In determining that amount you may consider not only the loss of the support, if any, which he gave to each or any of them, but also the loss of society, comfort and care, if any, which the plaintiff or any of said daughters have sustained by reason of his death, and you may consider not only the loss of the support, comfort and care which the plaintiff or any of said daughters would have been legally entitled to receive from said Charles T. Gilmore had he lived, but also the support, comfort and care which you may find them, or any of them, could reasonably expect to receive from the deceased had he lived. ...”

Appellant insists that in view of the issue framed by the pleadings, prejudicial error has resulted from these instructions, which authorized the jury to give, if so advised, substantial damages to the nonparticipating heirs at law of the decedent. In this connection, we pause to note that the widow alone is the designated plaintiff. The other heirs at law are three daughters, one of whom is a nonresident of the state. These heirs were named as defendants in the action, but so far as is known were not served with process. The executor of the estate of decedent was so served and later defaulted. Although authorized by section 377 of the Code of Civil Procedure to sue on behalf of the heirs of decedent in a case like the present one, we know of no authority for the contention that by his default any rights of the heirs not served are prejudiced. This follows because although he is authorized to sue, he is not compelled to do so and the independent right of action given by the statute is in nowise dependent upon whether he does or does not exercise the power given him. (Ruiz v. Santa Barbara G. etc. Co., 164 Cal. 188 [ 128 Pac. 330 ].)

We thus have before us a complaint which avers the heir-ship of both plaintiff and the three daughters of decedent. We find also that the widow as plaintiff sues upon the whole of the cause of action given by the code section. It is also true that she prays for judgment upon the whole cause of action and supplements this with a prayer for a partition or distribution of the lump sum which may be awarded therein. No objection was or is made that a defect in parties existed because of failure to serve process on the alleged nonconsenting heirs.

The anomaly in the situation arises because in the complaint it is alleged that the daughters of decedent suffered no pecuniary injury by reason of his death. This, it is strongly urged, put the daughters out of the case and so reduced and confined the issue to the loss suffered by the plaintiff alone and that in view of such fact, the instructions as given necessarily encouraged the jury to go far afield and give substantial damages outside the issue thus tendered by the pleadings. As authority for this contention appellant rests heavily upon the case of Massachusetts Bonding etc. Co. v. Los Angeles Ry. Corp., 182 Cal. 781 [ 190 Pac. 161 ]. But this argument overlooks the fact that, as above noted, the complaint does not purport to restrain or limit the cause of action given by the statute but on the contrary purports to sue to collect the whole of the same. It has been many times held in this state that the cause of action is a joint one, a single one and an indivisible one. (Salmons v. Rathjens, 152 Cal. 290, 294 [ 92 Pac. 733 ]; Estate of Riccomi, 185 Cal. 458 [14 A. L. R. 509, 197 Pac. 97 ]; Rabe v. Western Union Tel. Co., 198 Cal. 290, 299 [ 244 Pac. 1077 ].)

The allegation of the complaint that no injury has resulted to the nonparticipating heirs by reason of the death of their father, tendered, as to defendant, no issue so long as it is understood that plaintiff is suing upon the one cause of action as a whole. This allegation concerns the defendant only as to the amount of the recovery. The complaint discloses the existence of other heirs and prays that their rights be adjudicated. Had these heirs appeared in this action they could not have altered the issue founded upon the alleged negligence of the defendant. In the trial here being reviewed there was no place for litigation between the heirs themselves as to the strength of their relative claims and the amount that might be awarded each of them. Such a contest would follow the granting of a lump sum award. Again, if these heirs had appeared they could have g’one no further than either-to join with the plaintiff in the cause of action or to disclaim any benefit under the same. The true fact is that the complaint in reality tendered the issue involved not only on behalf of plaintiff but on behalf of defendant heirs as well. The heirs named as defendants, in other words, are in reality plaintiffs in the case. (Donahoe v. Wooster, 163 Cal. 114 [ 124 Pac. 730 ]; 20 Cal. Jur., sec. 14, p. 499.)

With this situation before us, it is readily seen that the question is narrowed down to whether or not the inser-tion of the allegation of no damages above referred to, misled the defendant to its prejudice. It should first be noted that by this action all of the heirs of decedent are foreclosed from further recovery. (Salmon v. Rathjens, supra; Rabe v. Western Union, supra.) By reason of this fact, defendant is protected against a claim by these nonparticipating heirs.

Again, a reference to the answer shows that the existence of the heirs, here made defendants, was admitted and upon information and belief it was asserted that the heirs named were not the sole heirs.' In the answer also may be found allegations upon information and belief that the reason these nonconsenting heirs did not join with the plaintiff was that they realized no actionable negligence could be shown against the appellant. Again, on the trial it was shown that these parties were children of the decedent and while it was shown that decedent did_ not contribute to their support, there was no showing that the cordial and affectionate relationship usually existing between parent and child did not exist as to them. Loss of comfort, protection and society is a proper element of injury and is by no means to be classed as compensable by merely nominal damages. Thus it is plain that defendant was not misled or injured by said allegation.

The instructions complained of carried the rights "of the widow and children along together hut in the disjunctive where necessary for the individual consideration of their claims, and we can see no error in giving them in that form. If pecuniary loss or loss of support was not shown as to certain of the heirs, it is to be presumed that no award was made in that behalf. The instructions in mentioning the various heirs, carried their rights together, as above stated, and the words, “if any,” were frequently inserted, thus showing that the court placed before the jury only such matters as the evidence warranted and kept the jury within the proper limits.

In the Massachusetts Bonding Company case, supra, the complaint tendered and the answer accepted as the sole issue a part only of the statutory cause of action. In other words, by tacit consent of the parties, the cause of action was split and limited alone to the damages suffered by the ■widow, the defendant accepting such restriction of the issue with knowledge of the existence of other heirs. In view of this fact it was in that case beyond the realm of the cause to instruct the jury that substantial damages could be given to the nonparticipating heirs. But, as above noted, in the complaint before us, the pleader tendered the whole issue under the code, including the rights not only of plaintiff but of all the other heirs as well, and this situation distinguishes the case above discussed and makes appropriate the instructions which were here given.

Finally, appellant claims the damages were excessive. Even in view of the decedent’s age, which was seventy-nine in the month of December preceding the accident, we cannot say that the record discloses that the verdict was provoked by or was the result of passion, prejudice or corruption on the part of the jury. The oral testimony and the photographs in evidence, taken shortly before his death, show that the decedent was an extraordinarily rugged and healthy man for his age and that he had the appearance of a man much younger in years.

The judgment is affirmed.

Shenk, J., Richards, J., Seawell, J., Curtis, J., Waste, C. J., and Langdon, J., concurred;