70 P. 276 | Cal. | 1902
The administrator of the estate of Walton Smith, deceased, brings this action against defendant to recover damages for the death of said Smith, the complaint alleging that his death was occasioned by and through the negligence of defendant. There is no allegation in the complaint to the effect that the deceased, Smith, left any heirs, and it is now claimed by defendant that the failure to make this allegation renders the pleading fatally defective.
By direct authorization of the Code of Civil Procedure (sec. 377), the administrator of an estate may bring an action to recover damages for the death of a person, and it has been so held in Munro v. Pacific Coast Dredging etc. Co.,
The action is entirely statutory. If there were no statute there could be no action. At common law no such right of action existed. (Burke v. Arcata etc. R.R. Co.,
There is a dearth of authority in this state upon the question under consideration, but in other jurisdictions the law has been repeatedly declared. In Stafford v. Drew, 3 Duer, 627, in speaking to this question, the court said: "These facts are in their nature material and issuable, and in actions like the present are therefore in my judgment just as necessary to be proved upon the trial, and consequently to be averred in the complaint, as the death of the person injured, and the wrongful act or negligence of the defendant as its primary cause." InSerensen v. Northern Pacific Ry., 45 Fed. Rep. 407, the learned judge said: "It cannot be it was contemplated *401 that in any case the personal representative might recover a judgment for injuries resulting in death and then afterwards institute an inquiry as to whether or not there was any one entitled to the amount recovered on this judgment. If it is necessary to prove on the trial there is a widow and next of kin, this fact should be alleged."
For the foregoing reasons the judgment is affirmed.
Van Dyke, J., and Harrison, J., concurred.