Knott

This action is to recover damages for the death of one Benjamin. Knott, and was originally instituted against Claus Spreckels and John D. MeGilvray. During the trial, on the motion of Spreckels, a nonsuit was granted as to him, and the case proceeded to judgment against the defendant MeGilvray. An appeal is taken from the judgment and also from the order denying the defendant McGilvray’s motion for a new trial.

The first contention of the appellant is, that the complaint does not state a cause of action, inasmuch as the surviving wife, as such, has no cause of action, but only the heirs of the deceased. By section 377 of the Code of Civil Procedure it is provided: “When the death of a person, not being a minor, is caused b.y the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or, if such person be employed by another person who is responsible for his conduct, then also against such, other person.” The complaint alleges that the plaintiff is the surviving wife and widow, and that, at the time of his injury and death, as aforesaid, was the wife of said Benjamin Knott. Thei surviving…