CARTER, J. I dissent.
The appeal in this ease should be dismissed as there is no final judgment, but if the case is to be decided on its merits, the three-year statute of limitation for a liability created by statute is applicable, and the judgment should be reversed. (Code Civ. Proc., § 338(1).)
On the question of appeal, it appears that there is yet no final judgment in the action from which an appeal may be taken. The record shows that the complaint on file purported to state four causes of action. The first asserts negligence on the part of one defendant, Pacific Gas and Electric Company, resulting in injury to Cabella, an employee of plaintiff’s insured, in the course of his employment and the payment of workmen’s compensation to him. The second re-alleges the allegations of the first and claims Cabella was damaged by the injury in the sum of $50,000. In the third, [790]the allegations of the first are again adopted and it alleges another defendant, Bechtel, was also negligent, and claim is made for payments made for workmen’s compensation. The fourth realleges the third and claims damages to Cabella of $50,000.
Apparently defendant Pacific Gas and Electric Company did not demur. At any rate, that is not here important. The third and fourth causes of action were for defendant Bechtel’s negligence in injuring Cabella, the employee, the third asking as damages only the amount paid by plaintiff to Cabella for workmen’s compensation and the fourth for additional damages suffered by Cabella. The demurrer was sustained as to the fourth cause only and the judgment entered dismissed that cause of action only. The appeal was taken from that judgment. That judgment is not appealable for there can be but one judgment in an action. After trial on the third cause of action is had, another judgment would be entered. That is to say, there cannot be separate judgments on different causes of action where the same parties are involved. The judgment dismissing the fourth cause of action is interlocutory and hence not appealable. (Mather v. Mather, 5 Cal.2d 617 [55 P.2d 1174] ; Bank of America v. Superior Court, 20 Cal.2d 697 [128 P.2d 357] ; Greenfield v. Mather, 14 Cal.2d 228 [93 P.2d 100] ; Sjoberg v. Hastorf, 33 Cal.2d 116 [199 P.2d 668].) The rule is stated in Bank of America v. Superior Court, supra, 20 Cal.2d 697, 701: “They assume that there can be a piecemeal disposition of the several counts of a complaint. They assume, when there is more than one count in a complaint, and a demurrer is interposed and sustained, and a judgment of dismissal entered, that there are as many separate judgments as there are counts in the complaint. That is not the law. There cannot be a separate judgment as to one count in a complaint containing several counts. On the contrary, there can be but one judgment in an action no matter how many counts the complaint contains. (De Vally v. Kendall Be Vally O. Co., Ltd., 220 Cal. 742 [32 P. (2d) 638] ; Mather v. Mather, 5 Cal. (2d) 617 [55 P. (2d) 1174] ; Potvin v. Pacific Greyhound Lines, Inc., 130 Cal.App. 510 [20 P. (2d) 129].) In the De Vally case, supra, a demurrer was sustained and a judgment entered dismissing two counts of a four-count complaint. The court held that the judgment was premature, and dismissed the appeal from it, and stated (p. 745) : ‘Although the matter is not mentioned by counsel for either side, it appears that the court should not have [791]given a judgment herein until the final disposition of the entire cause. The law contemplates but one final judgment in a cause. As stated in the case of Nolan v. Smith, 137 Cal. 360, 361 [70 Pac. 166], quoting from Stockton etc. Works v. Glen Falls Ins. Co., 98 Cal. (557) 577 [33 Pac. 633] : “There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it was entered, and finally determines the rights of the parties in relation to the matter in controversy.” ’ This language was approved in the Potvin case, supra, where the court said (p. 512) : ‘Since a final judgment in an action contemplates a complete adjudication of the rights of the parties and a final determination of the matter in controversy, it is apparent that the so-called judgment rendered upon the sustaining of a demurrer to one cause of action of a complaint without leave to amend, leaving five other causes of action unimpaired presenting matters to be litigated during a trial of the issues of fact, cannot be regarded as a final determination and disposal of the cause.’ ”
The majority seeks to escape this rule by stating that because plaintiff was suing in one capacity in the third count of the complaint, that is, in his own right, and in the fourth count, as trustee for his injured employee, the judgment entered on the fourth count is a final judgment. That is to say, there could be two final judgments in the case, one on the third count and the other on the fourth count. The reason given is that it would be like a case where two plaintiffs, each seeking damages from the same defendant on “severable” causes of action, one being by the insurance carrier for its compensation expenditures and the other by the employee for his personal injuries.
The reasoning is faulty. The basic notion of one single judgment as stated in all the cases hereinabove cited is that all the factual issues should be settled in one judgment, unless on a collateral matter one of several parties presents issues which are finally adjudicated as to him. In the instant case there are not two parties plaintiff in any true sense because the recovery by plaintiff on either cause of action rests upon identical issues: Was the defendant negligent? Was plaintiff’s injured employee contributively negligent? If defendant was negligent and plaintiff’s employee not, how much damages has the latter suffered? Plaintiff as employer is not entitled to recover any amount on his own behalf unless he is entitled to recover on behalf of his employee, and if he is entitled [792]to recover on behalf of the latter, the right of the employer to recover what he has paid in compensation and medical expenses follows as a matter of course; there is really no issue on the right to recover those two items of damage. Hence there cannot be any finality to a judgment as to the employer and not as to the employee or vice versa, whether either or both or one or the other is suing. Thus, this is not in fact a severable action to the extent at least that two judgments are required or proper.
The law authorizes these causes of action to be joined, and it is at least doubtful that they could be brought separately. Certainly, if they were brought separately, a judgment on one as to liability would be res judicata as to the other. Suppose the statute of limitation had not run, could plaintiff now bring another action on behalf of the employee? It seems obvious to me that it could not. Then how can separate judgments be rendered in this action if only one action could be brought ?
With reference to the statute of limitation, the majority holds that inasmuch as a personal injury is involved the one-year statute (Code Civ. Proc., § 340(3)) applies rather than the three-year period for a statutory liability. That conclusion is reached by construing the provision relating to an injury to a person as being special or particular whereas the one dealing with statutory liability is general and the particular controls over the general. The effect of this holding is that every action or proceeding mentioned in the limitation statutes prevails over the statutory liability provision regardless of whether the liability is or is not created by statute. This is true because all of them would be particular, like an injury to a person, and thus controlling over the statutory liability section. The result is to give to the statutory liability section no more effect than if it were an omnibus or catch-all provision. That it was not intended as such is plain. The Legislature has expressly enacted such a statute. (Code Civ. Proc., § 343.) The statutory liability section is read out of the books as the test is no longer whether or not the liability is created by statute, as all the previous authorities supposed, it is whether there is some other provision fitting the case.
There is no basis for the assumption that the personal injury section is particular and the statutory liability general. On the contrary, there are undoubtedly more of the former than of the latter.
[793]The cases demonstrate that the test of whether a liability is created by statute and thus controlled by the limitation statute, is whether, except for the statute there would not be liability; the test is not that stated by the majoriy. In Barber v. Mulford, 117 Cal. 356 [49 P. 206], it was held that a mandamus proceeding to compel the payment of a claim against a county based on contract was a statutory liability because it was the county’s duty by statute to pay it. Recovery of commissions by the district attorney on moneys collected by him from the county is governed by the three-year statute, not the two-year period for liabilities not founded on a written instrument. (Higby v. Calaveras County, 18 Cal. 176.) An action on the official bond of an officer is controlled by the three-year statutory liability provision although the bond is a contract. (County of Sonoma v. Hall, 132 Cal. 589 [62 P. 257, 312, 65 P. 12, 459] ; Norton v. Title Guaranty & Surety Co., 176 Cal. 212 [168 P. 16] ; Hellwig v. Title etc. Co., 39 Cal.App. 422 [179 P. 222].)
Here it is clear that in the absence of statute the employer would have no cause of action for injuries suffered by his employee, hence, the liability, if any, is created by statute, and the three-year statute of limitation applies.
Shenk, J., concurred.