*1 No. Second [Civ. RIDEAUX, Appellant,
MAXINE JOHN TORGRIM- D. SON, Administrator, etc., Respondent. Jr., as DeGroot, Sapiro, Samuel A. Rosenthal and Aaron Samuel Appellant. Burton B. Crane Respondent. M. Greathouse W. McCOMB, Prom of dismissal demurrer of defendant’s complaint without leave amend an ac
fourth amended personal plaintiff ap peals. facts are: essential
The alleging in 1937, plaintiff sub- follows:
stance as appointed quali- 1936, defendant was August 5, (1) Torgrimson, de- of the estate of John the administrator fied as Torgrimson, deceased. ceased, and Anna 1936, plaintiff employed decedents. (2) employed decedents and while July 3, (3) employment, scope of her and course acting within injuries negligent tiff received result of operation Torgrimson. careless of an automobile John Torgrimson Torgrimson John and Anna died as injury result received accident which caused plaintiff. *2 employ Decedents had not at time of the complied ment or at time with the the of the accident he sions, rules, Compensa regulations and of t Workmen’s tion, securing Insurance by and Act” employee compensation their under said act. by
Plaintiff her complaint amendment to predicate upon seeks of Code). (now the Civil Code To section Labor complaint tiff’s defendant a demurrer following ground, among on the others: upon plaintiff’s complaint That as amended was theory by a tort action was therefore barred terms of section subdivision of the Code of Civil Proce- dure.
The trial court sustained demurrer on ground among others. question necessary
This is the sole to be determined: plaintiff’s complaint predicated Is upon a tort and thus statute limitations? question This be answered the affirmative. argument that an action based upon the former sec (now tion section of the Labor Code)1 contractu, quasi is an action ex contrary is to the authorities in Lindauer, California. Krebenios v. 17], Mr. Justice Henshaw in affirming judg superior ment of a demurrer to a com predicated upon theory plaint similar to that in action, on the that was a tort action and the statute run, page of limitations had thus states the law at 432: appellant’s research him “If had led to an examination of state, this court the eases would have been saved this Denning State, appeal. Thus v. Cal. 316 tugboat 1000]), a deckhand state’s sued to which he sustained reason of having prior adoption arose 1This action the Labor Code. There only the Civil Code is fore, 1971 of section here involved. given been defective place an unsafe weak and work—a duty performance ladder which he compelled weight. Says to climb and this which broke under his court: however, . . . tort, ‘This in and not contract. do employment nothing Here the whatever to contract of has part liability except duty on with the to create a contract, and for the duty expressed in the violation of furnished no contract of damages; rule or standard is the ac estimation of nor grounded upon duty the contract, spring but ing by it, viz., from employer the relation created system always employee, pleading and under the old classed as an action delicto.’ To the same Basler effect Co., Ry. v. Sacramento etc. Pac. 993].” It is if intro likewise settled that new cause way duced the action into a amendment deemed time the amend to have been commenced at the ascertaining whether purpose ment to the for the prosecution of has barred not the statute limitations Bentel, Nat. (Merchants Bank the new cause of action. *3 473, 25].) 478 Pac. facts in instant rules Applying original case, appears of action stated in the it that the cause decedent’s failure predicated upon was defendant’s Compensation comply of Workmen’s with section 29b (a action), the cause of action statutory cause of Act predicated upon an action urging which present of the action the basis The tort which is ex delicto. complaint in- 1936, the fourth amended 3, occurred until was filed action not present troducing the subsequent the date year 1939, than a more complaint which was (in original fact the plaintiff’s injury year more than one after is barred subsection of action accident). the cause Thus Procedure, the trial of the Code Civil 340 3, section the amended demurrer to defendant’s sustained properly complaint. rea- another is also action an action is action cause of that, since son, above, the cause action shown as a tort or delicto is settled The law tort-feasors. of the the death with abated the absence of
that a statute expressly survival, providing for its abates death of (De Johnson, tort-feasor. La Torre v. Cal. 754, 757 1105]; S., 1 C. and Revival Abatement 196, sec. 143 [1936]; 1 [1921]; Cal. Cal. sec. 41 Jur. Jur. Supp. 10, Ten-Year [1936].) sec. 31 In the case there express statutory authority providing no the survival of such a cause of action.
For the foregoing reasons the is affirmed. WOOD, J., Concurring. judgment. concur in the the former appeal Torgrimson, (Rideaux matter (2d) (2d) 826]) it was held that an action employee against based sions of the Compensation, Workmen’s Insurance and Act of year as existed survives the death appeal It also held plea on that that the judicata of res could be considered since a defense of this proved pleaded nature must either and the be record be fore the as permit court was not such consideration of such defense.
The record now very before us shows situation different than appeal. former In her fourth amended com- plaint plaintiff alleged that applied she had to the industrial provisions accident commission for relief under the Compensation Act; application Workmen’s that her had been denied on the that her was not such to bring provisions act; her within and that there- after Court of had California denied her for writ to review the order of the industrial accident com- allegations mission. From the it is apparent may rely upon provisions that she not now Compensation Act but the Workmen’s her petition base provisions for redress (which 2800 of the 1937). became sec. Labor Code in arising Causes under of the Civil Code *4 negligence are founded on the Such causes in tort and abate with the death of of action sound the tort- feasor. portion opinion in that do not concur of Mr. Justice expressed view
McComb complaint introduces a new action. Moore, J., P. concurred. in the
A heard by appellant have Ap- Supreme District Court of Court, after peal, on was denied Court Curtis, J., hearing. voted for a No. 3248. Second
[Crim. PEOPLE, Respondent, SMITH, Ap- THE v. CHARLES L.
pellant.