166 P.2d 578 | Cal. Ct. App. | 1917
Lead Opinion
The following statement of the case and points relied on is taken from appellant's opening brief, as sufficiently presenting the matters now here for review:
"On the seventeenth day of June, 1911, one Fred Cox, while employed by the defendant as an electric lineman, was electrocuted and killed. By complaint filed October 13, 1911, Pansy M. Cox, widow and heir of Fred Cox, brought this action against San Joaquin Light Power Corporation to recover damages for the death of the said Fred Cox. On the twenty-seventh day of October, 1913, plaintiff's attorneys served and filed a notice of motion to file an amended complaint which in all material respects was the same as the original complaint except that the amended complaint set forth that Pansy M. Cox was the administratrix of the estate of Fred Cox, and in the amended complaint Pansy M. Cox sued as such administratrix. Defendants opposed the motion but on the seventh day of January, 1914, the court granted permission to file the amended complaint. Thereafter defendant demurred to the amended complaint upon the ground that the cause of action set forth in the same was barred by subdivision 3 of section
That Mrs. Cox is the widow and sole heir of decedent and the only person entitled to the fruits of the judgment is not disputed.
Section
It is contended by appellant that there is an "important distinction in the cause of action created by section 1970 of the Civil Code and that created by section
Mr. Pomeroy gives us the meaning of the terms, "cause of action." Cautioning against confusing them with the "remedy" and with "the action," he says: "In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong."
The cause of action here consisted of facts equally applicable to both sections, i. e., the death of the employee through the negligence of the employer. The same facts, as shown by appellant's statement of the case, are found in both the original and amended complaints, the only difference being that in the former the widow, as heir of the employee, was plaintiff, and in the latter the widow as representative of the employee. In both complaints the same cause of action was stated. In both cases the person and only person beneficially interested was the widow. Section
In the case of Reardon v. Balaklala Consol. Copper Co., 193 Fed. 189, the action was exactly similar to the action here and the same mistake was made in commencing the action. The father being the next of kin was, under section 1970 of the Civil Code, entitled to the benefit of the recovery, but erroneously, as did the widow in the present case, he commenced the action in his own name under the mistaken supposition that the case fell within section
A very full discussion of the question is found inMissouri, K. T. R. Co. v. Wulf,
In Ruiz v. Santa Barbara Gas etc. Co.,
Dubbers v. Goux,
We are entirely satisfied with the view expressed by Mr. Justice Van Fleet in Reardon v. Balaklala etc. Co., and do not find it necessary to consider the numerous cases cited by respective counsel.
The judgment is affirmed.
Burnett, J., and Hart, J., concurred. *530
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 21, 1917, and the following opinion then rendered thereon:
Addendum
In denying the application for a hearing in this court after decision by the district court of appeal of the third appellate district, we deem it proper in view of what is said in the opinion as to the effect of section 1970 of the Civil Code on section