been caused by the wrongful act of another may maintain the action authorized by said section lies necessarily in the fact of such death. What damage, in law, could a person himself suffer by reason of his own death caused by the tortious act of another! Obviously, no damage whatever. But the language of the section mentioned is itself plain and simple enough to show that the intention of the legislature, in enacting it, was to give to the surviving heirs of the deceased who may themselves be damaged by his death in a wrongful manner the right to sue for compensation for the damage so sustained. The section reads: "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death," etc.

Nor does the fact, if it be a fact, that the deceased did not bring an action in his lifetime for the damages occasioned to him by the injuries inflicted upon him bar the right of the heirs or personal representatives of the deceased to exercise and prosecute their right of action under section 377.

The above views accord with the authorities. We quote the following from Tiffany on "Death by Wrongful Act," section 23: "It is manifest that the act did not repeal, or create an exception to, the rule of 'acio personalis moritur cum persona' by providing for the survival of the action which the party injured might have maintained; for, though the action can be maintained only when the death is caused under such circumstances as would have entitled the party injured to maintain an action, it is not maintainable for the recovery of the damages resulting from the personal injury to him, and hence, by survival, to his estate; but is maintainable only for the recovery of damages for the pecuniary loss resulting from the death to the surviving members of his family. As Coleridge, J., said in one of the first cases that arose under the act: "This act does not transfer the right of action to his representative, but gives to his representative a totally new right of action, on different principles.' It must be admitted that expressions occur in some of the opinions to the effect that the statute gives a substituted, and not a new, right of action, but, having regard to the provisions of the act in respect to the persons who are entitled to the benefit of the action and the measure of damages, such a

position is entirely untenable. Said Lord Blackburn, in Seward v. The Vera Cruz: 'A totally new action is given against the person who would have been responsible to the deceased if the deceased had lived-an action which . . . is. new in its species, new in its quality, new in its principle, in every way new, and which can only be brought if there is any person answering the description of the widow, parent, or child, who, under such circumstances, suffers pecuniary loss.'''

The supreme court, in Munro v. Pacific Coest DR. Co., 84 Cal. 515, 524, [18 Am. St. Rep. 248, 24 Pac. 303, 305], said, referring to what was said in the English case of Blake v. Midland Ry. Co., 18 Q. B. 93: "We agree with what is said. in the opinion above quoted, that the action given by the statute (section 377, supra) is a new action, and not the transfer to the representatives of the right of action which the deceased person would have had if he had survived the injury," citing a number of English and American cases. (See, also, Lange v. Schoettler, 115 Cal. 388, 390, [47 Pac. 139]; Burk v. Arcata & Mad River R. R. Co., 125 Cal. 364, 366, 367, [73 Am. St. Rep. 52, 57 Pac. 1065]; Gregory v. Southern Pacific Co., 157 Fed. 113; Webster v. Norwegian Min. Co., 137 Cal. 399, [92 Am. St. Rep. 181, 70 Pac. 276]; Western & A. R. Co. v. Bass, 104 Ga. 390, [30 S. E. 874]; Causey v. Seaboard Air Line R. Co., 166 N. C. 5, [Ann. Cas. 1916C, 707, L. R. A. 1915E, 1185, 81 S. E. 917].)

From the foregoing considerations, it follows, of course, that the time for bringing an action of this character begins to run from the time of the death of the injured person and not, as counsel for the defendant contends, from the time that the injury causing his death was inflicted upon him. The deceased died on the first day of May, 1912, and this action was commenced on the twenty-third day of April, 1913. The action was therefore brought within the statutory time, and the demurrer upon the ground that it was barred by the section named was properly overruled.

3. As stated, the next assignment of error involves a question closely akin to the proposition above discussed. It came about thus: The witness, Mandry, for the defendant, was asked by the latter's counsel about an alleged conversation the witness had with the deceased, a few days after he received the beating by the defendant, to which question an

objection was made by the plaintiff and sustained by the court. Thereupon counsel for the defendant stated that he desired to prove by the witness that in the conversation referred to Marks declared that the defendant did not strike him on the head. Objection to the proposed testimony was interposed by the plaintiff on the usual or ordinary grounds and, furthermore, that it was hearsay, and the objection sustained. We think the ruling was correct.

As above shown, the right of action asserted here by the plaintiff was not a right of action of the deceased. It arose independently of any consideration of the deceased's right to maintain and prosecute an action in his lifetime for any damages he might have suffered because of the injury inflicted upon him by the defendant. The right of his heirs or representatives to maintain this action for his death and to support the same by evidence could not be destroyed by any compromise or agreement of release he might have made with. the defendant while his right of action existed. Or, as the supreme court has recently said, referring to the action created by section 377-we quote the syllabus: "The right of action thereby created is a new right of action with a different measure of damage from that which accrued to the injured person as the result of the defendant's wrongdoing, and a compromise agreement and release of the wrongdoer made by the injured person before his death is not a defense thereto." (Earley v. Pacific Elec. Ry. Co., 176 Cal. 79, [167 Pac. 513].)

By parity of reasoning, the declaration of the deceased after he received the injuries and before his death, that he was not struck and injured by the defendant, cannot be used for the purpose of defeating the heirs or representatives of the deceased in an action which is theirs and never his. The declaration was not admissible under the rule allowing declarations of a deceased person against his pecuniary interest or that of his successor in interest (Code Civ. Proc., sec. 1853); for, as has been shown, he never had any interest in the present action or the subject matter thereof, nor are his heirs or representatives, in an action of this character, his successors in interest. Nor was it admissible as part of the res gestae. The whole theory upon which such declarations are excluded in a case of this character is, as above suggested, that the legal rights of the heirs or representatives of

a deceased person seeking to recover for his death resulting from the wrongful act of another, while growing out of the injury causing the death, are independent of that fact, and cannot be defeated or affected by anything the deceased can say or do. This proposition is clearly explained in the cases, among which we cite the following: Hedge v. Williams, 131 Cal. 455, [82 Am. St. Rep. 366, 63 Pac. 721, 64 Pac. 106]; Pennsylvania Co. v. Long, 94 Ind. 250, 252; City of Bradford v. Downs, 126 Pa. 622, [17 Atl. 884]; Louisville etc. Ry. Co. v. Berry, 2 Ind. App. 427, [28 N. E. 714].)

4. The next assignment involves an attack upon the action of the court in striking out a portion of an answer to a certain question put to the defendant by his counsel. The defendant, after explaining that, when Fehr and Robinson were scuffling on the floor, he attempted to stop the fight, and said to the belligerents that he did not "want any trouble here," was asked by his attorney, "What did Marks do or say then?" to which he replied: "He said, 'You Dutch s-nof-a-b-h, if you don't let them have it out I will get you,' and I would have stopped it there if it had not been for Marks." The court, on motion, struck out the following portion of the answer: "I would have stopped it there if it had not been for Marks." The ruling is not erroneous. The portion of the answer stricken out involved the mere opinion and conclusion of the witness, and its vice was in its insinuation, without explaining or describing his acts or conduct so that the jury could have determined that question, that Marks was taking a hand in the trouble or encouraging it.

5. Again, it is said that the court erred to the prejudice of the defendant's rights in the trial by striking out the following explanation by the defendant of his reason for keeping in his saloon the piece of hose with which he struck the deceased: "I am out there and I have no one's protection whatever and I thought I had a right to protect my place there." Although we think the ruling was proper, the statement stricken out might have been allowed to stand without jeopardizing the rights of the plaintiff or contributing to the advantage of the defendant. The hose was in his saloon. and he admitted using it on the deceased, and, manifestly, the fact that he kept it there to protect himself or that he was without protection except such as he might himself personally invoke when necessary could have no tendency to excuse his

act in striking Marks. There was no claim in this case that he was anticipating trouble with Marks and his companions on the day of the difficulty or at any other time, and that he had procured the piece of hose for the special purpose of meeting such trouble or of assaulting Marks. The statement that he was without protection (presumably police protection) was clearly irrelevant and immaterial. That fact would not, of course, justify him in taking the law into his own hands or in wrongfully assaulting another.

6. As seen, the defendant testified that he did not use the hose on the deceased until the latter "had swung at him." He was then asked: "And when you did use it, did you use any more force than you felt necessary there to cause him to cease attacking you?" We think the form of the question is objectionable, yet, if he had been asked the question whether or not he believed, from all appearances, that he had used no more force than was necessary to cause the deceased to cease attacking him, the question might have been proper, in which case, after all, it would have been for the jury to say whether the force used by the defendant was greater than was necessary to stop the deceased from further prosecuting his attack upon the former. But, in any event, even if the ruling involved error, we cannot say that it was prejudicial, since the general trend of the defendant's testimony was that he acted in self-defense, and used no more force in repelling the attack of the deceased than was absolutely requisite for his own protection and safety.

7. The following questions to the defendant by his attorney were objected to as incompetent, irrelevant, immaterial, and leading, and the objection sustained: "Did you hit him or attempt to strike him until he first swung at you?" "Who made the first hostile demonstration there, Marks or you?" To the latter question the additional objection was made that it called for the conclusion of the witness. Undoubtedly the objections that the questions were leading in form and suggestive of the answer desired were well taken, and the exclusion of answers upon that ground, though a highly technical ground, was legally justified. Even though the court could properly enough have allowed the questions to be answered and should have done so, yet it is to be said that the record shows that the defendant received the benefit of the testimony which they would probably have elicited;