Bowman v. Southern Pacific Co.

CONREY, P. J.

William Bowman was an employee of the defendant, a common carrier doing an interstate business. While employed in the yards of the defendant, in the city of Los Angeles, on the sixth day of May, 1913, Bowman received certain injuries, followed by his death on the second day thereafter. He left as his surviving dependents the plaintiff Bertha Bowman and three minor children. Thereafter, on April 20, 1914, this action was commenced in the name of the parties as shown in the foregoing title, for the benefit of said widow and minor children. The action was tried on issues presented by the third amended complaint and the answer thereto. In that complaint, as well as the original complaint, two causes of action were stated. The first count in each complaint was based upon negligence of the defendant alleged to have caused the accident and resulting injury and death. The second count alleged negligence of the defendant in its treatment of Bowman at its hospital on Crocker Street, in the city of Los Angeles, and in conveying him from that hospital to its hospital in San Francisco, and in treatment of the deceased at the hospital in San Francisco, by reason whereof the death occurred.

On the thirtieth day of April, 1918, pursuant to notice duly given, the plaintiff asked leave of court to amend her complaint by showing the fact of her appointment as administratrix of the estate of William Bowman, deceased, and by omitting the words, “Bertha Bowman, widow of William Bowman, deceased,” and substituting therefor the name of

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Bertha Bowman, administratrix of said estate for the benefit of Bertha Bowman, widow, Julia Bowman, Elsie Bowman, and Minehard Bowman, minor children of the deceased. Overruling the objections of the defendant thereto, this motion was granted and the action was thereafter prosecuted in said substituted name.

At the trial of the action the court, on motion of defendant, granted a judgment of nonsuit as to the first cause of action. On the second cause of action the case was submitted to the jury, which rendered a verdict in favor of the plaintiff. Judgment was rendered accordingly, and the defendant appeals from the judgment.

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Appellant’s first point is that the court erred in allowing the amendment whereby the personal representative of the deceased was substituted for the original parties after the statute of limitations had run against the cause of action. In support of this proposition we are referred to the Federal Employers’ Liability Act (35 Stats, at Large, 65; 8 Fed. Stats. Ann., 2d ed., p. 1208 [U. S. Comp. Stats., secs. 8657-8665]), which relates to the liability of common carriers by railroad to their employees in certain eases. In case of the death of the employee, the action is authorized to be prosecuted by the personal representative of the deceased employee for the benefit of the surviving widow and children of such employee. Section 6 of the act (see. 8662) establishes a limitation of two years within which the action must be commenced, counting from the date cause of action accrued. It has been held that where the federal statute is applicable, the right to recover, if any, is in the personal representative of the deceased, and that no one else can maintain the action.