Leong v. Postal Telegraph-Cable Co.

SPENCE, J.

Plaintiff, who was the mother of Leland Eng, a deceased minor, brought this action against defendant company, which was the employer of the deceased minor, seeking to recover damages for the death of said minor. Defendant demurred to plaintiff’s amended complaint upon the ground

[850]

that the complaint did not state facts sufficient to constitute a cause of action and upon the further ground that the court had no jurisdiction of the subject of the alleged action. Defendant’s demurrer was sustained without leave to amend and judgment was thereupon entered in favor of defendant. Plaintiff appeals from said judgment.

In our opinion the trial court’s ruling must be affirmed upon the ground that the court had no jurisdiction of the subject of the action and we shall therefore confine our discussion to the jurisdictional question.

It is conceded that the allegations of the amended complaint affirmatively showed that the deceased minor was employed by defendant and that his death arose out of and in the course of the employment when he was run over by a truck and killed while engaged in delivering a message for said defendant. Under these circumstances the general rule is that the parent of the deceased minor does not have a cause of action against the employer to recover damages for the death of the minor under section 376 of the Code of Civil Procedure as the provisions of said section 376 are superseded by the provisions of the law relating to workmen’s compensation which make the remedy before the Industrial Accident Commission “the exclusive ' remedy against the employer for the injury or death.” (Lab. Code, §§ 3600, 3601;

Gerini

v.

Pacific Employers Ins. Co.,

27 Cal.App.2d 52 [80 P.2d 499];

McLain

v.

Llewellyn Iron Works,

56 Cal.App. 58, 60 [204 P. 869].) This general rule has been held applicable regardless of whether the surviving parent was or was not dependent upon the deceased minor.