PABLO FUENTES et al., Respondents, v. CLARENCE L. TUCKER, Appellant; ANDRES L. NEGRETTE et al., Respondents, v. CLARENCE L. TUCKER, Appellant, 31 Cal. 2d 1

GIBSON, C. J. The minor sons of the respective plaintiffs were killed by an automobile operated by defendant. The two actions were consolidated for trial, and in each case the verdict of the jury awarded the plaintiffs $7,500. Defendant appealed from the judgments claiming the trial court erred in permitting plaintiffs to present evidence of facts outside the issues framed by the pleadings.

On the day of the trial defendant filed an amended answer in each case which admitted “that he was and is liable for the death of the deceased . . . and the damages directly and proximately caused thereby.” Plaintiffs were nevertheless permitted to prove the circumstances of the accident, including the facts that defendant was intoxicated and that the children were thrown 80 feet by the force of the impact.

It is defendant’s position that the introduction of evidence as to the circumstances of the accident was error because it was not relevant or material to the amount of the damages, which was the only issue to be determined by the jury. Plaintiffs contend that defendant could not, by acknowledging legal responsibility for the deaths of the children, deprive them of the right to show the circumstances surrounding the accident, and that therefore it was not error to admit evidence of such facts.

They do not claim, however, that the evidence was material to any of the facts in dispute under the pleadings as they stood at the commencement of the trial. It is a doctrine too long established to be open to dispute that the proof must be confined to the issues in the case and that the time of the court should not be wasted, and the jury should not be confused, by the introduction of evidence which is not relevant or material to the matters to be adjudicated. This is merely one aspect of the larger problem of delay in the conduct of litigation.

Every court has a responsibility to the public to see that justice is administered efficiently and expeditiously and that the facilities of the court are made available at the first possible moment to those whose eases are awaiting trial. It would be an unwarranted waste of public funds, and a manifest injustice to the many litigants seeking an early trial date, to allow counsel in a particular case to occupy substantial periods of time in the useless presentation of evidence on matters not in controversy; and we know of no well-considered opinion which asserts such a right.

One of the functions of pleadings is to limit the issues and narrow the proofs. If facts alleged in the complaint are not controverted by the answer, they are not in issue, and no evidence need be offered to prove their existence. (Travelers Ins. Co. v. Byers, 123 Cal.App. 473, 482 [11 P.2d 444]; Code Civ. Proc., §§ 462, 588, 1868, 1870 subds. (1), (15); see I Wigmore on Evidence [3d ed. 1940], P- 9, §2.) Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it is error to allow the introduction of such evidence. (Estates of Boyes, 151 Cal. 143, 147 [90 P. 454]; Moss v.

Youngblood, 187 Ga. 188 [200 S.E. 689, 692]; Nantahala Power & Light Co. v. Sloan, 227 N.C. 151 [41 S.E.2d 361, 362]; see 10 Cal.Jur. 797, § 98; 21 Cal.Jur. 157, § 106; Code Civ. Proc., § 1868; cf. Kurn v. Counts, 247 Ala. 129 [22 So.2d 725]; Hanskett v. Broughton, 157 Minn. 83 [195 N.W. 794].) It follows, therefore, if an issue has been removed from a case by an admission in the answer, that it is error to receive evidence which is material solely to the excluded matter.

This, of course, does not mean that an admission of liability precludes a plaintiff from showing how an accident happened if such evidence is material to the issue of damages. In an action for personal injuries, where liability is admitted and the only issue to be tried is the amount of damage, the force of the impact and the surrounding circumstances may be relevant and material to indicate the extent of plaintiff’s injuries. (Johnson v. McBee, 66 Cal.App.2d 524, 527 [152 P.2d 526]; Martin v.

Miguen,, 37 Cal.App.2d 133, 137 [98 P.2d 816].) Such evidence is admissible because it is relevant and material to an issue remaining in the case. The defendant here by an unqualified statement in his answer admitted liability for the deaths of the children, and the sole remaining question in issue was the amount of damages suffered by the parents. In an action for wrongful death of a minor child the damages consist of the pecuniary loss to the parents in being deprived of the services, earnings, society, comfort and protection of the child. (Bond v.

United Railroads, 159 Cal. 270, 285 [113 P. 366, Ann.Cas. 1912C 50, 48 L.RA.N.S. 687].) The manner in which the accident occurred, the force of the impact, or defendant’s intoxication could have no bearing on these elements of damage. The evidence, therefore, was not material to any issue before the jury, and its admission was error. In support of their contention that they had a right to prove the circumstances of the accident, although such evidence had no relation to the sole remaining issue of damages, plaintiffs strongly rely on Martin v. Pacific Gas & Elec. Co., 203 Cal. 291 [264 P. 246].

The plaintiff in that case was injured by contact with a highly-charged power line owned and operated by defendant. The complaint alleged in one paragraph that defendant so negligently maintained the line that a wire broke and fell to the ground, and in a separate paragraph it was alleged that defendant negligently left the wire unguarded on the ground. At the opening of the trial defendant admitted that it was negligent in allowing the wire to remain on the ground and that plaintiff was thereby injured.

Plaintiff was nevertheless permitted to present evidence in support of all acts of negligence alleged in the complaint, and a judgment in his favor was affirmed on appeal. The views of the justices who participated in the Martin decision (203 Cal. 291) were expressed in four separate opinions with the unfortunate result that considerable confusion has arisen with respect to the holding of the case.

Three members of the court, in an opinion written by Justice Preston, took the position that defendant’s admission covered only one of two specific acts of negligence charged in the complaint and that therefore the trial court properly refused to limit the proof. In a separate opinion, two justices expressed the view that, since it was not alleged that one of the asserted acts of negligence constituted a proximate cause of the injury, it was error to allow the introduction of evidence of that act. They were of the opinion, however, that it was not reversible error because the verdict was not excessive.

These two justices did not discuss the propriety of presenting evidence of the circumstances of an accident after an admission of liability. A sixth justice stated that, while it might have been error for the trial court to permit proof of negligence after defendant’s admission, the judgment should be affirmed because there was no miscarriage of justice. The seventh justice dissented on the grounds that defendant’s admission amounted to a withdrawal of every denial of negligence, that it was error to allow any evidence of matters which were no longer at issue, and that the error was prejudicial.

It thus appears that, although six justices were of the view that the judgment should be affirmed, a majority of the court did not agree upon the reasons for the result. The Martin case does not hold that it is proper to introduce evidence of the circumstances of an accident after a full and complete admission of liability where such evidence is not material to the sole remaining issue of damages.

The most that can be said in that regard is that three members of the court took the position that it was not error to allow proof of the circumstances of the accident because the oral admission made on behalf of defendant at the opening of the trial was so limited that it did not constitute a full admission of liability. There is, however, an erroneous statement in the opinion written by Justice Preston which the trial court relied on in the present case and which has been followed in three District Court of Appeal decisions (House v. Pacific Greyhound Lines, 35 Cal.App.2d 336, 342 [95 P.2d 465]; Rowe v.

Rennick, 112 Cal.App. 576, 579-580 [297 P. 603]; Behrendt v. Times-Mirror Co., 30 Cal.App.2d 77, 83 [85 P.2d 949]). The statement reads: “Indeed it never has been the law that it was or could be error to prove even admitted allegations of the pleadings if the patience of the trial court would permit it.” (203 Cal. 291, 299.) We do not agree. The test of the admissibility of evidence, so far as relevancy and materiality is concerned, is not whether the judge presiding at the trial is patient or impatient but whether the evidence is relevant and material.

It is true that the trial judge may, in his discretion, exclude cumulative, although relevant, evidence to avoid confusing the jury or wasting the time of the court. (Douillard v. Wood, 20 Cal.2d 665 [128 P.2d 6]; Estate of Wineteer, 176 Cal. 28 [167 P. 516] ; VI Wigmore on Evidence [3d ed., 1940] 576-578.) A different rule applies, however, to evidence offered with respect to an issue entirely removed by the pleadings. Such evidence is not merely cumulative on a material issue but is completely irrelevant and there is no room for the exercise of discretion. The cases of House v.

Pacific Greyhound Lines, 35 Cal.App.2d 336 [95 P.2d 465], Rowe v. Rennick, 112 Cal.App. 576 [297 P. 603], and Behrendt v. Times-Mirror Co., 30 Cal.App.2d 77, [85 P.2d 949], are disapproved insofar as they are inconsistent with the views expressed herein. The introduction of evidence of admitted facts is permissible in cases where the admission is ambiguous in form or limited in scope or where, during the trial of a case, a party seeks to deprive his opponent of the legitimate force and effect of material evidence by the bald admission of a probative fact. (See Dunning v. Maine Cent. R.

Co., 91 Me. 87, 97 [39 A. 352, 356, 64 Am.St.Rep. 208]; Baumier v. Anteau, 79 Mich. 509 [44 N.W. 939, 941]; Eesley Light Power & Co. v. Commonwealth Power Co., 172 Mich. 78 [137 N.W. 663, 664]; Webster v. P. W. Moore & Son, 108 Md. 572 [71 A. 466, 469]; John Hancock Mutual Life Insurance Co. v. Moore, 34 Mich. 41, 43; Buppel v. Clayes, 230 Mo.App. 699 [72 S.W.2d 833, 835-836]; Bank of North America v. Crandall, 87 Mo. 208; Henderson v. Ball, 193 Iowa 812, [186 N.W. 668, 672]; Stevens v. Citizens Gas & E. Co., 132 Iowa 597 [109 N.W. 1090, 1091]; Carter v. Bay, 70 Ga.App. 419 [28 S.E.2d 361, 369]; Priest v.

Inhabitants of Groton, 103 Mass. 530, 538-540; McHenry v. United States, 276 F. 761, 766 [51 App.D.C. 119]; State v. Young, 52 Ore. 227 [96 P. 1067, 132 Am.St.Rep. 689, 18 L.R.A.N.S. 688]; People v. Fredericks, 106 Cal. 554 [39 P. 944]; In re Mason’s Will, 82 Yt. 160 [72 A. 329, 330] ; see also IX Wigmore on Evidence [3d ed. 1940], §2591; 53 Am.Jur. 94.) These cases must be distinguished from the present case where an entire issue has been completely eliminated by a clear and unequivocal admission in the pleadings. For example, in the case of Dunning v. Maine Cent. R.

Co., 91 Me. 87, 97 [39 A. 352, 356, 64 Am.St.Rep. 208] which is cited in the Martin ease, (203 Cal. at p. 299), the plaintiff sued to recover damages for loss caused by a fire alleged to have been started by one of defendant’s locomotives. Against objection plaintiff was permitted to introduce evidence to show that defendant’s engines emitted sparks which spread fires and that such fires had been seen in the immediate vicinity of the track shortly after the passage of trains.

Defendant sought to prevent plaintiff from presenting this evidence by an oral statement admitting “the possibility of engines setting fires.” The admission was not only more limited in scope than the evidence but its obvious purpose was to “rob the evidence of much of its fair and legitimate weight.” (91 Me. 87, 97 [39 A. 352, 356, 64 Am.St.Rep. 208].) The court properly held that it did not lie within the power of one party to limit the proof by this device.

In determining whether the defendant here was prejudiced by the erroneous admission of immaterial evidence which may have tended to increase the amount of the verdict, we are not, of course, confronted with identically the same problem as that presented in a case where the claim of excessive damages is based solely on the contention that the verdict is the result of passion or prejudice. It is true, as argued by defendant, that we cannot say with certainty to what extent the jury in arriving at the amount of the verdict may have been influenced by the admission of the immaterial evidence.

If, however, the amount awarded plaintiffs is not disproportionate to the loss suffered, the error has not resulted in a miscarriage of justice, and the judgment should be affirmed. (See Cal.Const., art.

VI, § 4 1/2.) The parents in each case were entitled to recover for the pecuniary loss they suffered by reason of the death of their son, and in determining that loss the jury could take into consideration the benefits that the parents were reasonably certain to have received from the earnings and services of their child during his minority, the support and financial benefit which they would have received from the child after it reached majority, and also the pecuniary loss which the parents suffered and will suffer in the future by being deprived of the comfort, society and protection of the child.

As an offset to these factors, consideration must be given to what it would have cost the parents to support and educate the child, had he lived. It is manifestly difficult to measure some of these factors in dollars and cents, and a rough estimate of the pecuniary loss which the parents have suffered is the most that can be expected in these cases. In O’Meara v. Haiden, 204 Cal. 354 [268 P. 334, 60 A.L.R. 1381], it was held that $10,000 was not an excessive amount to allow as general damages for the death of a boy 7 years of age.

The boys involved in this accident were approximately 12 years old when they were killed. Certainly the sum of $7,500, which was awarded by the jury in each case, cannot be said to be an unreasonable amount to allow for the wrongful death of a child of that age, and the verdicts are not so large as to indicate that the jury was unduly influenced by the admission of the immaterial testimony in question. It does not appear, therefore, that the error resulted in a miscarriage of justice. Defendant also contends that it was error to permit the mothers of the boys to be joined as plaintiffs.

The right of action for wrongful death under Code of Civil Procedure, sections 376, 377, is entirely statutory, and the action must be brought in the names of the persons to whom the right is given by statute. (Salmon v. Rathjens, 152 Cal. 290, 294 [92 P. 733]; Evans v. Shanklin, 16 Cal.App.2d. 358 [60 P.2d 554]; see 24 Cal.L.Rev. 231.) The persons specified in the statute, therefore, are the only parties entitled to sue, and there is no authority for the joinder of other parties regardless of the fact that they may have sustained or suffered some damage or loss.

Except in certain circumstances not here present, the father alone is authorized to bring an action for the death of a minor child. (Code Civ. Proc., § 376.) This provision is in accord with the general rule in California that the husband has the management and control of community property and ordinarily must bring any action concerning it. (For the general rule, see Civ. Code, §§ 172, 172a; Sanderson v. Niemann, 17 Cal.2d 563, 567 et seq. [110 P.2d 1025]; Moody v. Southern Pacific Co., 167 Cal. 786, 789 et seq. [141 P. 388]; Johnson v. National Surety Co., 118 Cal.App. 227, 229-230 [5 P.2d 39]; Sternes v.

Sutter Butte Canal Co., 99 Cal.App. 465, 471-472 [278 P. 921].) The mother is a - necessary or proper party in an action for the death of a minor only in those instances in which the statute expressly authorizes her to sue. The suggestion made in House v. Pacific Greyhound Lines, 35 Cal.App.2d 336, 344 [95 P.2d 465], Keena v. United Railroads of S. F., 57 Cal.App. 124, 131 [207 P. 35], and Abos v. Martyn, 10 Cal.App.2d 698, 700 [52 P.2d 987], that the mother may be a proper party and may join with the father in cases in which the father alone is authorized by statute to sue, must be disapproved.

Defendant claims he was prejudiced by the misjoinder because the presence of the mothers “as plaintiffs would tend to augment the damages.” It has already been determined that the verdicts are not disproportionate to the loss suffered, and, moreover, it does not appear that the joinder of the mothers as parties tended to increase the amounts awarded. The damages include the loss suffered by both the father and the-mother, and the proceeds of the judgment are community property. (Sandberg v. McGilvray-Raymond etc. Co., 66 Cal.App. 261, 272 [226 P. 28]; see opinion on denial of hearing in Keena v.

United Railroads of S. F., 57 Cal.App. 124, 132 [207 P. 35].) The mothers, of course, could be present at the trial and testify as witnesses even though they were not parties to the action, and their relationship to the children was properly disclosed in their testimony. The judgments are affirmed. Shenk, J., Edmonds, J., Traynor, J., Sehauer, J., and Spence, J., concurred. In the cited ease it was squarely held that it was error to admit evidence on an issue not raised by the pleadings.

A prior judgment was held to be not admissible either to prove the existence of an easement or to establish the amount of damages. As to the first ground the court stated: “Here the existence and the extent of the original easement are alleged in the petition and not denied in the answer. Therefore, the respondent admitted the existence and extent of the petitioner’s easement prior to raising its dam one vertical foot. Such admission is as binding on the parties as if found by the jury, and ‘ evidence offered in relation thereto is irrelevant. ’ ...

It having been admitted that the petitioner held an easement . . ., the judgment was admissible in this proceeding, if admissible at all, only upon the question of damages.” With respect to the question of damages the court held that the evidence was not admissible because it was too remote and because it was a consent judgment. (Nantahala Power & Light Co. v. Sloan, 227 N.C. 151 [41 S.E.2d 361, 362-363].)