Sears v. Majors

STURTEVANT, J.

On March 28, 1929, the plaintiffs commenced an action for wrongful death. In the first count of their complaint the plaintiffs alleged that on November 21, 1924, Edward E. Sears suffered an injury to the middle finger of his right hand; that he consulted the defendant Dr. Adams and that the latter treated him; that later the injury developed into tetanus; that the malady proceeded to develop and later caused the death of the decedent; that the defendant by the use of ordinary care should have injected a serum known as anti-tetanic serum, but the defendant negligently omitted to do so; that the said Edward E. Sears died on the third day of January, 1925; that he left surviving him a wife, one of the plaintiffs, and a son, the other plaintiff, who was at the time of the death of his father of the age of fifteen years; that on the twenty-eighth day of March, 1927, the mother was appointed guardian

ad litem

of her son and thereupon this action was commenced by the guardian

ad litem

in behalf of the minor son and by the mother in her own behalf. In the second count the same facts, except as to names and dates, are alleged regarding the defendant Dr. E. A. Majors. The defendants appeared separately and each interposed demurrers to the second amended complaint. The demurrers were sustained without leave to amend and from a judgment entered thereon the plaintiffs have appealed and have brought up the judgment-roll.

The pleadings present the question, Was the complaint barred by the statute of limitations ? Both parties concede that in their complaint the plaintiffs attempted to allege a cause of action bringing themselves within the provisions

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of section 377 of the Code of Civil Procedure. Both parties agree that at the time the action was commenced the mother was barred by the statute of limitations. (Code Civ. Proc., see. 340, subd. 3.) However, the plaintiffs contend that the minor son was not barred by reason of the provisions of subdivision 1 of section 352 of the Code of Civil Procedure. The plaintiffs concede that section 377 is based, in part, on the English statute commonly known as Lord Campbell’s Act, but they claim that said act has gone through so many changes that it can no longer be said the entire act has been inserted in the Code of Civil Procedure. In this behalf they assert that section 377 gives the rights therein mentioned and adopts and follows the Lord Campbell Act in part only. Continuing, they claim that subdivision 3 of section 340 is an entity unto itself and is a statute of limitations not a part of the cause of action, but a statute applicable to the remedy only. Thereupon they claim that the provisions of subdivision 3 of section 340 of the Code of Civil Procedure do not apply to persons falling within the exceptions defined in subdivision 1 of section 352. Following this line of reasoning, the son, by his guardian, contends that his action was commenced in time and that the action having been saved as to the infant that it was also saved as to. the mother.