Barr v. Southern California Edison Co.

This is an appeal by plaintiff from a judgment dismissing her action upon sustaining a demurrer to an amended complaint after failure to further amend.

The action was instituted on September 23, 1911, by plaintiff as administratrix of the estate of David W. Barr, deceased, to recover damages for his death, alleged to have been caused by the negligence of defendant on September 25, 1910. There was nothing in the original complaint, containing one count, showing that deceased left any heirs, and a general demurrer interposed thereto was, upon this ground, sustained with leave to-amend. (Webster v. Norwegian Mining Co., 137 Cal. 399 , [ 92 Am. St. Rep. 181 , 70 Pac. 276 ].) Within the time granted therefor, plaintiff filed an amended complaint which, although it contained three counts, was substantially in the form of the original complaint, save and except in each count it was alleged “that the deceased left at the time of his death surviving him his widow, Mary Jane Barr, who as the administratrix of his estate and as his personal representative and as plaintiff, brings this action; that by reason of the premises the plaintiff as such administratrix has sustained damages in the sum of one hundred thousand dollars.” At the time of filing the amended complaint, the time within which, under subdivision 3 of section 340 of the

Two points are presented on the appeal. It is claimed: 1. That the amended complaint was obnoxious to the general demurrer interposed, for the reason that it was not alleged' the suit was brought for the benefit of any heir of deceased, nor made to appear that he left an heir, nor alleged in terms that such or any heir sustained damage in any sum by reason of the death of deceased; and, 2. That if the same stated a cause of action, it was barred by reason of the amended complaint being filed after the statute of limitations had run against it.

1st. The complaint alleged “that the deceased left at the time of his death his widow, Mary Jane Barr.” Not only is the widow of deceased an heir, but section 1970 of the Civil Code expressly provides that “when death . . . results from an injury to an employee . . . the personal representative of such employee shall have a right of action therefor against such employer, and may recover damages in respect thereof, for and on behalf, and for the benefit of the widow . . which amount so recoverable, as provided in section 377 of the Code of Civil Procedure, shall be “such damages ... as under all the circumstances of the case may be just.” The point made in this behalf possesses no merit.

Nor was it necessary to allege that the suit was brought for the benefit of such widow. Since plaintiff, who -is shown to be the personal representative of deceased, could not maintain the action other than for the benefit of the heirs (Webster v. Norwegian Mining Co., 137 Cal. 399 , [ 92 Am. St. Rep. 181 , 70 Pac. 276 ] ; Kerrigan v. Market-Street Ry. Co., 138 Cal. 506 , [ 71 Pac. 621 ]), for whom she acts as statutory trustee, it follows as a matter of law from the facts alleged that the suit is brought for her benefit. It could not be

Since plaintiff as administratrix could not sustain damage by reason of the facts alleged, the allegation that she in such capacity suffered damage, must be disregarded as surplusage. (Newman v. Smith, 77 Cal. 27 , [ 18 Pac. 791 ].) It is not alleged in terms that the widow sustained pecuniary damage by reason of the death of deceased. Such omission, however, did not render the complaint obnoxious to the general demurrer. Upon the death of deceased, caused by the wrongful act of defendant, the statute gave the widow the right to such damages as under the circumstances were just, and authorized the personal representative to sue for the recovery of the same. By his death the widow was deprived of that share in the earnings of deceased to which as his wife she was entitled for support. (Kelley v. Chicago etc. Ry. Co., 50 Wis. 381 , [ 7 N. W. 291 ]; Serensen v. Northern Pac. R. Co., 45 Fed. 407 ; Civ. Code, sec. 155.) Since the complaint alleged facts from which damages to the surviving wife must necessarily follow, it was sufficient to overcome the objection on the score that it failed to allege the amount in which the heir was damaged. (Blasingame v. Home Ins. Co., 75 Cal. 638 , [ 17 Pac. 925 ].) Moreover, the prayer of the complaint was for a specific sum which plaintiff sought to recover upon the facts alleged, and it has been held that this is equivalent to a formal allegation of the amount of damages sustained. (Riser v. Walton, 78 Cal. 390 , [ 21 Pac. 362 ] ; Bank v. Port Townsend, 16 Wash. 450 , [ 47 Pac. 896 ].) While the complaint cannot be regarded as a model pleading, it is nevertheless, in our opinion, sufficient when tested by a general demurrer.

2nd. As stated, the original complaint failed to state a cause of action, and conceding the amended pleading was sufficient in this regard, respondent insists that by reason of the fact that it was filed after the statute of limitations had run against the cause of action, it was barred. The amended complaint did not purport to set up a new or different cause of action from that attempted to be set up in the original complaint. “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

In our opinion the learned judge erred in sustaining the demurrer. The judgment is, therefore, reversed and the trial court directed to overrule the demurrer interposed to the complaint.

Conrey, P. J., and James, J., concurred.