This is an appeal by plaintiff from a judgment that he take nothing by his action and that defendant recover its costs, given upon sustaining a demurrer to plaintiff’s complaint after failure on plaintiff’s part to amend.
The action is one instituted October 19,1910, by plaintiff as special administrator of the estate of decedent to recover damages for the death of deceased, an employee of defendant, on October 23,1909, alleged to have been caused by the wrongful neglect of defendant in furnishing defective and insufficient appliances with which to perform his work. It appeared from the allegations of the complaint that an appliсation on plaintiff’s part for general letters of administration of said estate was pending at the time of the institution of the action, that he had already been appointed special administrator by . an order expressly empowering him to institute this action, and that letters of special administration had been issued to him in conformity with the order. A demurrer was interposed to the complaint on various grounds, among others being the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint did fail to state a cause of action, in that it failed to allege that the deceased left any heir, an allеgation absolutely essential in an action of this character.
(Webster
v.
Norwegian Mining Co.,
1. As to the first objection made to the granting of plaintiff’s application: If the special administrator was authorized to commence the action, the general administrator was entitled to be substituted as plaintiff. Section 1416 of the Code of Civil Prоcedure provides that the powers of the special administrator cease upon the granting of letters testamentary or of administration, and that “the executor or administrator may prosecute to final judgment any suit commenced by the special administrator.”
The objection is based upon the character of this action, as defined by our decisions, and the language of our statute relative to the powers and duties of special administrators.
Section 377 of the Code of Civil Procedure gives a right of action for damages for the death of a person not a minor, caused by the wrongful act or neglect of another, to the “heirs or personal representatives” of the deceased. Section 1970 of the Civil Code as amended in 1907 [Stats. 1907, p. 119], purports to give a right of action, for and on behalf of “the widow, children, dependent parents, and dependent brothers and sisters,” against an employer, for damages resulting from the death of an employee in сertain cases, to “the personal representative of such employee.” It is settled by the decisions that an action of the character authorized by section 377 of the Code of Civil Procedure is one solely for the benefit of the heirs, by which they may be compensated for the
*192
pecuniary injury suffered by them by reason of the loss of their relative, that the money recovered in such an action does not belong to the estate but to the heirs only, and that an administrator has the right to bring the action only because the statute authorizes him to do so, and that he is simply made a statutory trustee to recover damages for the benefit of the heirs. (Sеe
Webster
v.
Norwegian Min. Co.,
Section 1411 of the Code of Civil Procedure provides that in the event of delay in granting letters testamentary or of administration from any cause, and in other specific eases, “the superior court, or a judge thereof, must appoint a special administrator to collect and take charge of the estate of the decedent in whatever county or counties the same may be found, and to exercise such other powers as may be necessary fоr the preservation of the estate. ’ ’ Section 1412 of the Code of Civil Procedure provides that the appointment must be made “by entry upon the minutes of the court, specifying the powers to be exercised by. the administrator.” Section 1415 of the Code of Civil Procedure provides that the special administrator “must colleсt and preserve for the executor or administrator, ’ ’ all the personal property of the decedent and demands of the estate, and must take charge of the real estate, ‘ ‘ and for any such and all necessary purposes may commence and maintain or defend suits and other legal proceedings as аn administrator.” As already noted, section 1416 of the Code of Civil Procedure provides that the executor or administrator may prosecute to final judgment any suit commenced by the special administrator.
The theory of learned counsel for respondent is that the powers conferred by statute on a special administrator have to do solely with the collection and preservation of the property of the estate, that the superior court has no jurisdiction to confer a power not authorized by the statute, and that as the money recovered in such an action has been held not to belong to the estate, but solely to the heirs, the commence *193 ment and maintenance of such an action is a matter not embraced within the powers conferred upon the special administrator.
We are of the opinion that the commencement and maintenance of such an action should be held to be within the scope of the powers and duties of a special administrator, as such powers and duties are defined by our statute. Although the moneys recovered in such an action do not constitute assets of the estate, they do constitute property which it is the right and duty of the personal representative of the deceased to collect for the benefit of the heirs, and the right to maintain an action for the recovery of the same is expressly conferred upon such personal representative. Section 1415 of the Code of Civil Procedure appears to us under any fair and reasonable construction to authorize the commencement and maintenance by the special administrator, when authorized by the order of court appointing him, of any suit or legal proceeding that might be commenced or maintained by the general administrator or executor. He for any of certain enumerated purposes “and all necessary purposes may commence and maintain or defend suits and other legal proceedings
as an administrator”
may do. Any action thus commenced by him may be prosecuted to final judgment by the general administrator or executor when appointed. No reason is apparent why the special administrator should be held to be excluded from the exercise of this power conferred upon general administrators, and in many cases it may be exceedingly necessary for the protection of the rights of the heirs interested that he should have such power, in view of the fact that such an action must be instituted within one year from the date of death of the deceased. It has been held that such an administrator may maintain the action given to the “executor or administrator” by section 1589 of the Code of Civil Procedure to recover when there is a deficiency of assets “for the benefit of the creditors” of the decedent, real estate conveyed by him during his lifetime with intent to defraud his creditors. (See
Forde
v.
Exempt Fire Co. et al.,
2. We cannot see that any new or different cause of action from that attempted to be set up in the original complaint was attempted to be stated in the proposed amended complaint. By each it was attempted to state the cause of actiоn given by the statute to the personal representative of the deceased for the benefit of heirs of the deceased, where his death is caused by the wrongful act or neglect of another. It would appear to be immaterial in this connection whether the personal representative in this case has the right of action by virtue of section 377 of the Code of Civil Procedure or by virtue of section 1970 of the Civil Code, as amended in 1907. In either event he has such a cause of action, under one section it being, in view of our decisions, for the benefit of heirs generally who are damaged, and under the other, it being for the benefit of certain designated persons only, including “dependent parents, and dependent brothers and'sisters.”
If the amended complaint did not attempt to set up a new and different cause of action from that attempted to be set up in the original complaint, there is nothing in the contention made by respondent based upon the statute of limitations. 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 complete, the amendment, though made after the expiration of the period of limitation, relates back to the time of the commencement of the action. This was expressly held by the district court of appeal for the first district in
Rauer’s Law etc. Co.
v.
Leffingwell,
*196 3. Basing its contention upon the claim that this action must be held to be subject to the limitatiоn in section 1970 of the Civil Code to the effect that it can be maintained only for the benefit of “dependent parents and dependent brothers and sisters” where there is no widow or child, it is urged here that the proposed amended complaint is fatally defective in not alleging that the parents of deceased, who are аlleged to be his only heirs at law, were “dependent parents.” This objection does not appear to have been made in the trial court. We are of the opinion that such an objection should not be considered on such an application as the one made to the trial court, and probably the same is truе as to the objection based on the statute of limitations, which we have already considered on its merits. The usual and orderly way to test the sufficiency of an amended complaint is, in the first instance, by demurrer, after the same has been filed, when the questions presented in regard thereto may be considered and determined, and leave given to the pleader to amend if the pleading be held insufficient and the court deem it proper that the party should have such leave.
In view of what we have said, we are of the opinion that the trial court erred in not granting the application for substitution and leave to file an amended complaint.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Shaw, J., and Sloss, J., concurred.