Gay v. Winter

Citations

• 34 Cal. 153

Syllabus

<p>Pleading—Denials in Answer.—Before entering on the trial of an action, the plaintiff is entitled to an explicit denial of the material allegations of the complaint, or an admission of their truth, either by direct statement, or by silence; and it is the duty of the Court to enforce this right.</p> <p>Idem—Mode of Testing.—Where the answer contains no new matter, and the plaintiff claims that all the denials are bad, he may test their sufficiency by a motion for judgment upon the pleadings.</p> <p>Idem.—If some of the denials of an answer are deemed good, and the others bad, the plaintiff may move to strike out the latter. This practice is justified by the fiftieth section of the Practice Act. Answers consisting of denials, which do not explicitly traverse the material allegations of the complaint, are sham and irrelevant within the meaning of the statute.</p> <p>Puneral Expenses.—In an action under the statute for causing by wrongful act the death of a person, funeral expenses are not recoverable, except as special damages, if recoverable at all, and must be specially pleaded.</p> <p>Variance between Pleading and Proof.—In an action under the statute for causing by wrongful act the death of a person, where the allegation of the complaint was that defendants owned, as tenants in common, the entire block, in front of which the accident occurred, and the proof was that they owned it in distinct parcels in severalty, the variance was immaterial.</p> <p>Negligence—What Sufficient Proof of.—To maintain an action for causing by wrongful acts the death of or injury to a person, two things must be shown : 1st. An obstruction in the road by the fault of the defendant; 2d. No want of ordinary care on the part of the plaintiff. The gravamen of the action is the negligence of the defendant, and plaintiff cannot recover where it appears that the negligence of the deceased or person injured contributed in any degree to the death or injury sustained.</p> <p>Idem.—But in cases wh