
    [Civ. No. 2451.
    First Appellate District, Division One.
    January 16, 1919.]
    DELIA TANN, Appellant, v. WESTERN PACIFIC RAILWAY COMPANY (a Corporation), Respondent.
    Death by Wrongful Act or Neglect—Bight of Action for Damages —Nature of Bight.—Statutes like section 377 of the Code of Civil Procedure giving an action for wrongful act or neglect, causing death, create a right entirely distinct from that which was vested in the injured person before his death.
    Id.—Bight of Action for Personal Injuries — Abatement—New Cause of Action.—Where one injured by the wrongful act or neglect of another dies, the right of action vested in him against the person causing the injuries abates, and under section 377 of the Code of Civil Procedure, a new and independent cause of action for damages for his death caused by the wrongful act or neglect (if the deceased was not a minor at the time of his death), immediately arises in favor of the heirs or personal representatives of the deceased.
    Id.—Pleading—Statute of Limitations.-—An action by the heiu, or personal representatives of one not a minor at the time of hid death, commenced under such circumstances, can be instituted A-ithin one year, and is not barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure.
    
      Id.—Other Action Pending — Demurrer Erroneously Sustained.— Where, while an action for damages for personal injuries by one who had been injured by the wrongful act or neglect of another was pending, the injured person died, and thereupon his surviving widow and heir commenced an action under section 377 of the Code of Civil Procedure for the damages caused by his: death, the latter action, being one solely for the benefit of the heir, by which she sought compensation for the pecuniary injury suffered by her by reason of the loss of her relative, was not an action between the same parties for the same cause of action as in the former suit, and the lower court, therefore, erred in sustaining a demurrer to the complaint in the latter suit on the ground that there was another action pending between the same parties and for the same cause.
    Id.—Complaint Defective.'—-Where the complaint in such action did not state that the decedent was am adult at the time of his death and left an heir or heirs, it failed to state a cause of action. 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 376 of the Code of Civil Procedure.
    Id.—Amendment.—The court in such case erred in sustaining a demurrer to the complaint without leave to amend, since the complaint was clearly susceptible of amendment.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. A. Sturtevant, 'Judge. Reversed.
    The facts are stated in the opinion of the court.
    John H. Leonard and E. M. Leonard for Appellant.
    Charles W. Slack for Respondent.
   WASTE, P. J.

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 the commencement of the suit an amendment to the complaint was allowed whereby Prank 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 377 of the Code of Civil Procedure, which provides' as follows: “When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages .against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case, may be just.”

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, 170 Cal. 529, [150 Pac. 357].) At common law there was no action for torts causing death. The riglit of action died with the injured person. Accordingly, it is universally held that statutes like section 377 of the Code of Civil Procedure, giving an action for wrongful act or neglect causing death, create a right entirely distinct from that which was vested in the injured person before his death. (Western Metal Supply Co. v. Pillsbury, 172 Cal. 414, [Ann. Cas. 1917E, 390, 156 Pac. 491].) The right of action vested in the decedent Tann against the defendant corporation for the injuries alleged to have been received by him died and abated (Clark v. Goodwin, supra), and a new and independent cause of action for damages for the death of Tann, caused by the wrongful act or neglect of defendant corporation (if he was not a minor at the time of his death), immediately arose in favor of the heirs or personal representatives of the deceased under section 377 of the Code of Civil Procedure. The action here is of this character and as such could be instituted within one year. (Ruiz v. Santa Barbara Gas Co., 164 Cal. 190, [128 Pac. 330].) It was, therefore, not barred by the provisions of subdivision 3, section 340, of the Code of Civil Procedure.

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 Gas Co., supra; Clark v. Goodwin, supra; Western Metal Co. v. Billsbury, 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 377 of the code, supra; that if the decedent was a minor the action was one authorized by section 376 of the Code of Civil Procedure, which can only be brought by the “father, or in case of his death or desertion of his family, the mother.”

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. Norwegian Min. Co., 137 Cal. 399, [92 Am. St. Rep. 181, 70 Pac. 276].) As the widow of decedent, plaintiff was given no right of action by the statute. (Bennett v. North Carolina R. R. Co., 159 N. C. 345, [74 S. E. 883]; Code Civ. Proc., sec. 377.)

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 376 of the Code of Civil Procedure. If under the latter section, the action was brought by the father, it would be necessary to allege that the deceased was a minor at the time of his death, and that plaintiff was his father. If brought by the mother, it would be necessary for her to allege, not only that deceased was a minor, but that the father was dead or had deserted his family. In other words, these actions being purely statutory, it is necessary to allege sufficient facts to bring plaintiff within the provisions of the particular statute under the authority of which the action may be maintained.

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.

Eichards, J., and Kerrigan, J., concurred.  