140 P. 47 | Cal. Ct. App. | 1914
This is an appeal by plaintiff from a judgment dismissing her action upon sustaining a demurrer to an amended complaint after failure to further amend.
The action was instituted on September 23, 1911, by plaintiff as administratrix of the estate of David W. Barr, deceased, to recover damages for his death, alleged to have been caused by the negligence of defendant on September 25, 1910. There was nothing in the original complaint, containing one count, showing that deceased left any heirs, and a general demurrer interposed thereto was, upon this ground, sustained with leave to amend. (Webster v. Norwegian Mining Co.,
Two points are presented on the appeal. It is claimed: 1. That the amended complaint was obnoxious to the general demurrer interposed, for the reason that it was not alleged the suit was brought for the benefit of any heir of deceased, nor made to appear that he left an heir, nor alleged in terms that such or any heir sustained damage in any sum by reason of the death of deceased; and, 2. That if the same stated a cause of action, it was barred by reason of the amended complaint being filed after the statute of limitations had run against it.
1st. The complaint alleged "that the deceased left at the time of his death his widow, Mary Jane Barr." Not only is the widow of deceased an heir, but section 1970 of the Civil Code expressly provides that "when death . . . results from an injury to an employee . . . the personal representative of such employee shall have a right of action therefor against such employer, and may recover damages in respect thereof, for and on behalf, and for the benefit of the widow . . ."; which amount so recoverable, as provided in section
Nor was it necessary to allege that the suit was brought for the benefit of such widow. Since plaintiff, who is shown to be the personal representative of deceased, could not maintain the action other than for the benefit of the heirs (Webster v. Norwegian Mining Co.,
Since plaintiff as administratrix could not sustain damage by reason of the facts alleged, the allegation that she in such capacity suffered damage, must be disregarded as surplusage. (Newman v. Smith,
2nd. As stated, the original complaint failed to state a cause of action, and conceding the amended pleading was sufficient in this regard, respondent insists that by reason of the fact that it was filed after the statute of limitations had run against the cause of action, it was barred. The amended complaint did not purport to set up a new or different cause of action from that attempted to be set up in the original complaint. "Where there is no attempt to state a new cause of action in an amended complaint, but merely the addition of matters essential to make the original cause of action *26
complete, the amendment, though made after the expiration of the period of limitation, relates back to the time of the commencement of the action." (Ruiz v. Santa Barbara Gas etc.Co.,
In our opinion the learned judge erred in sustaining the demurrer. The judgment is, therefore, reversed and the trial court directed to overrule the demurrer interposed to the complaint.
Conrey, P. J., and James, J., concurred. *27