City of Los Angeles v. Howard

KINCAID, J. pro tem.

The complaint herein alleges that an employee of plaintiff, while acting within the course and scope of his employment, received bodily injuries which were proximately caused by the negligence of Louis M. Howard, since deceased; that plaintiff, as a result of such injuries furnished medical attention and paid compensation to its said employee pursuant to the provisions of division 4 of the Labor Code of the State of California, in the sum of $3,652; that plaintiff subsequently filed a claim for the repayment to it of such sum with Mattie V. Howard, as administratrix of the estate of said tort feasor, which claim was rejected in full.

Appeal is taken by plaintiff from a judgment of dismissal entered after defendants’ oral general demurrer was sustained without leave to amend upon the ground that plaintiff’s cause of action abated upon the death of the tort feasor.

The sole question presented for determination herein is whether an employer may maintain an action against the estate of a deceased person to recover the money he has expended under the provisions of division 4 of the Labor Code because of injury to or death of his employee, proximately caused by the negligence of such person during his lifetime ? Our answer to this query is in the affirmative.

The cause of action alleged in plaintiff’s complaint differs from the injured employee’s common law action for damages. The Legislature, by the enactment of section 3852 of the Labor Code, created a new cause of action for the employer entirely separate and distinct from the right of action

[730]

of the employee.

(Limited Mutual etc. Ins. Co.

v.

Billings,

74 Cal.App.2d 881, 882 [169 P.2d 673].)

Section 3852 of the Labor Code (Div. 4, pt. 1, ch. 5) provides : ‘ ‘ The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, may likewise make a claim or bring an action against such third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he was liable including all salary, wage, pension, or other emolument paid to the employee or to his dependents.”