Taylor v. Albion Lumber Co.

The decedent, Anton Bozich, also known as Anton Bozic, while acting in the course of his employment by the defendant on March 25, 1911, received injuries which caused his death within a few days thereafter. Upon the theory that the injuries causing death were due to the negligence of defendant, this action was brought by the administrator of his estate, on behalf of his mother, Helena Bozic, alleged and shown to be his sole heir at law, and alleged to be wholly dependent upon him for subsistence and support, and damaged by his death. When at the trial plaintiff concluded his case, a motion for a nonsuit was made by defendant substantially on the grounds, first, that section 1970 of the Civil Code vests no right of action in a nonresident alien; second, that the statute provides for the recovery for the benefit of dependent parents only, and that the evidence fails to show that Helena Bozic was a dependent parent within the meaning of that section; third, that there was a total insufficiency of the evidence to show any negligence on the part of defendant, etc. The learned judge of the lower court indicated that he thought the third ground not well taken and the first ground, well taken, but granted the motion on the second ground, viz., that there was no sufficient showing of dependency to go to the jury. Judgment was accordingly given that the action be dismissed. We have here an appeal by plaintiff from such judgment.

We are of the opinion that a sufficient case for the jury was made, in so far as the third ground of the motion was concerned, viz., insufficiency of the evidence to show any negligence, etc., on the part of the defendant. It was admitted that one Walter Kirry was the foreman employed to superintend the work being done by deceased at the time of the accident,

As to the second ground of the motion. The case appears to have proceeded to this point upon the theory that the only right in the mother of deceased to damages for the death of her son, although such death was caused by the neglect of his employer, is such right as is given by section 1970 of the Civil Code. That section provides for an action in the cases covered thereby, by the personal representative of the employee, for damages for the benefit, in the absence of wife or children, of “dependent parents” of the employee. It was claimed by defendant and held by the trial court that there was no sufficient showing of dependency on the part of the mother. This was the very point made in the case of Gonsalves v. Petdhima & Santa Rosa Ry. Co., 173 Cal. 264 , [ 159 Pac. 724 ], where dependency was not shown, and where it was claimed, in view of the provisions of section 1970 of the Civil Code, that such a showing was essential to a recovery for the benefit of a parent. Undoubtedly this would be true if the parent’s right is to be determined solely with reference to such section. But it was held in that ease that section 377 of the Code of Civil Procedure, giving a right of action to the heirs or personal representatives of a person, not a minor, whose death is caused by the wrongful act or neglect of another, against such person, or if such person be employed by another who is responsible for his conduct, then also against such other person, in which action “such damages may be given as under all the circumstances of the case may be just,” was not in any way superseded by the provisions of section 1970 of the Civil Code, and that a personal representative of a deceased employee might successfully maintain the action provided by section 377 of the Code of Civil Procedure, in every case where a right existed independent of certain amendments to section 1970 of the Civil Code, made in the year 1907 (Stats. 1907, p. 119). It was pointed out that these amendments greatly modified the earlier rules touching the assumption of risks and nonliability for injuries occasioned by the negligence of a fellow-servant, giving a right of recovery in such cases under circumstances where no such right before existed. It was said: “Section 1970 of the Civil Code is to be construed with section 377, not as superseding it, and so construed it means, as declared in

There can be no doubt that in the matters constituting the basis of plaintiff’s claim, Kirry was acting as the representative of his employer. Just as in the Gonsalves case, 173 Cal. 264 , [ 159 Pac. 724 ], the alleged negligent omission was in the matter of using reasonable care in furnishing to the employee a safe place in which to work. The employer cannot escape liability by a delegation of such a duty to another employee. The foreman to whom the duty was delegated here was the representative of the employer, and any negligence on his part was the negligence of the employer. (See Foley v. California Horse Shoe Co., 115 Cal. 194 , [ 56 Am. St. Rep. 87 , 47 Pac. 42 ] ; Shelton v. Pacific Lumber Co., 140 Cal. 511 , [ 74 Pac. 13 ], and cases there cited.) The Gonsalves case explicitly decides that for such negligence section 377 of the Code of Civil Procedure has always given an action, and that it is not a cause of action created by section 1970 of the Civil Code. The action given by section 377 of the Code of Civil Procedure is one for the benefit of “heirs” of the employee, and lies, regardless of their condition as to dependency, for any pecuniary loss they may suffer by reason of the death. (See Hillebrand v. Standard Biscuit Co., 139 Cal. 236 , [ 73 Pac. 163 ].) As said in Sneed v. Marysville etc. Co., 149 Cal. 710 , [ 87 Pac. 379 ] : “This pecuniary loss may be either a loss arising from the deprivation of something to which such

The second ground of motion for nonsuit was without merit. That the mother is a nonresident alien is, in our opinion, altogether immaterial. Certainly section 377'of the Code of Civil Procedure makes no exception in this regard. Whether section 1970 of the Civil Code fails to cover the case of a nonresident alien, the question raised by the first ground of the motion for a nonsuit is immaterial here ■ in view of the fact that the action may be sustained as one under section 377 of the Code of Civil Procedure, but we are not to be understood as intimating that section 1970 of the Civil Code excludes such an alien.

The complaint in this case alleged all the facts essential to the cause of action created by section 377 of the Code of Civil Procedure, and the evidence made a sufficient prima facie case in that regard. Under these circumstances we may not shut our eyes to this and affirm the judgment which is obviously erroneous, simply because counsel for plaintiff have not relied on this section. It is only just to them as well as to the learned judge of the trial court to note that the Gonsalves case was not decided by this court until after the trial of this cause and the writing of the briefs upon which the cause was originally submitted for decision upon the appeal.

In the petition for a hearing in this court after decision by the district court of appeal, it was suggested that the appeal must be dismissed because the mother of deceased is a subject and resident of Austria-Hungary, and hence, it is claimed, a nonresident alien enemy. An alien enemy is one with whose country the United States is at war. (2 Corpus Juris. 1043.) The judgment appealed from was given on June 11, 1914, nearly three years prior to the beginning of our participation as a belligerent in the present war, and of course the record here shows nothing in this behalf. There has, as yet, been no declaration by either nation of a state of war between the United States and Austria-Hungary, our declaration being limited to Germany. We may concede that a state of

The judgment is reversed.

Sloss, J., Shaw, J., Melvin, J., Henshaw, J., and Lawlor, J., concurred.

Rehearing denied.