Treat v. Los Angeles Gas & Electric Corp.

WORKS, J.

This is an action commenced hy parents to recover damages for the death of their minor son. The young man was an employee of defendant, and at the time \\ of the injury which caused his death was engaged in a work which both arose out of and in the course of his employment. The trial court sustained a general demurrer to the complaint, with leave to amend, and afterward, plaintiffs electing not to amend, rendered judgment for defendant. Plain

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tiffs appeal from the judgment. The only question to be determined on the appeal, it will be observed, is whether the complaint states facts sufficient to constitute a cause of action.

Appellants contend that the action is maintainable under the terms of section 376 of the Code of Civil Procedure, which provides:

“A

father, or ... , the mother, may maintain an action for the injury or death of a minor child, . . . when such injury or death is caused by the wrongful act or neglect of another. ...” Judgment was rendered against appellants in the trial court, however, upon the theory that the allegations of the complaint were such that a recovery under section 376 was barred by the provisions of the Workmen’s Compensation, Insurance and Safety Act (Stats. 1917, p. 831; and as amended in part, Stats. 1919, p. 910. See Stats, as amended, Deering’s Consol. Supp. to Gen. Laws 1917-21, p. 1555), enacted by the legislature many years after section 376. It is provided in paragraph (a) of section 6 of the Compensation Act, italics being ours, that upon the concurrence of several conditions which need not now be specified, “Liability for the compensation provided by this act,

in lieu of my other liability whatsoever to any person,

shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any such employee if the injury shall proximately cause death. ...” Paragraph (b) of the same section is to the effect, with certain provisos not of present interest, italics again being ours, “Where such conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this act,