Barr v. Southern California Edison Co.

SHAW, J.

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

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Code of Civil Procedure, an action of this character may be instituted had expired. Defendant interposed a general demurrer to each count of the amended complaint, and also alleged that each cause of action set forth therein was barred by the provisions of said subdivision 3 of section 340 of the Code of Civil Procedure. This demurrer, by an order in general terms, was sustained and, upon plaintiff’s failure to amend, judgment of dismissal followed.

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.