178 P. 971 | Cal. Ct. App. | 1919
This action is one brought by the plaintiff to recover damages for the death of her husband, Emil Joseph Tann. From the complaint, it appears that the decedent was injured through the negligence of defendant corporation on January 16, 1913. Within one year from the date of his injury he commenced an action against said defendant for damages for the injury alleged to have been received. That action was at issue and ready for trial at the time of his death, which occurred on April 29, 1914.
On June 25, 1914, plaintiff, as "the surviving widow and heir of" said decedent, commenced the present action. After *379 the commencement of the suit an amendment to the complaint was allowed whereby Frank G. Drum and Warren Olney, Jr., receivers of the Western Pacific Railway Company, were made defendants.
Defendants demurred to the amended and supplementary complaint generally and specifically. In support of the special demurrer the defendants urged that the action was barred by subdivision 3, section 340, of the Code of Civil Procedure, to wit, the limitation of one year; also, that if the cause of action for injury sustained by the said Emil Joseph Tann survived to his widow, the complaint showed that there was then pending another action between the same parties and for the same cause.
The lower court sustained the demurrers and refused leave to the plaintiff to amend. Judgment was entered in favor of defendants, and plaintiff appeals.
Admittedly, this action is one brought, and sought to be maintained, under the provision of section
Construing this section, our supreme court has said: "Our statute 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 his heir or his personal representative, against the person causing the death." (Clark v. Goodwin,
This action, being one solely for the benefit of the heir by which she seeks to be compensated for pecuniary injury suffered to her by reason of the loss of her relative, it is not the action brought by the decedent during his lifetime. It is not an action pending between the same parties for the same cause of action as in the former suit. (Ruiz v. Santa Barbara GasCo., supra; Clark v. Goodwin, supra; Western Metal Co. v.Pillsbury, supra.)
The lower court was in error, therefore, in sustaining the demurrer on the special grounds urged.
On the appeal, however, respondents present a brief in support of the general demurrer, which was not urged in the court below. They contend that the complaint should allege that the deceased was an adult at the time of his death; otherwise it does not state facts sufficient to bring the action within the provision of section
The only reference in the complaint relative to the heirs of decedent Tann is found in the allegation that "the plaintiff, Delia Tann, is the surviving widow and heir of Emil Joseph Tann, deceased." There is no allegation that the decedent was an adult at the time of his death. Undoubtedly, the complaint does fail to state a cause of action if it fails to allege that deceased was an adult and left an heir, or heirs, an allegation absolutely essential in an action of this character. (Ruiz v. Santa Barbara Gas Co., supra; Webster v. NorwegianMin. Co.,
If the deceased, at the time of his death, was a minor, the action could not be brought by the plaintiff as heir at law, but should have been instituted under section
As aforestated, the action of the court below, in sustaining the demurrers to the amended and supplementary complaint on the two grounds considered, was erroneous. Conceding that the allegation in the complaint as to the heirs of decedent is insufficient, the further action of the trial court sustaining the demurrer without leave to amend, was incorrect. Plaintiff intended, and attempted, to state the necessary facts, and her complaint was clearly susceptible of proper amendment.
The "complaint or declaration may be amended as in other actions where the amended pleading does not state a new cause of action, and such an amendment, although made after the expiration of the period of limitations, will relate back to the commencement of the suit. Thus, an amendment may be made . . . which adds an allegation that deceased left a wife and children." (Ruiz v. Santa Barbara Gas. Co., supra.)
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Richards, J., and Kerrigan, J., concurred. *382