Groom v. Bangs

SHAW, J.

This is an appeal from a judgment after an order sustaining a demurrer to the complaint.

The complaint demurred to purports to state a cause of action in favor of Marshall W. Groom to recover damages alleged to have been sustained by him from the death of Hattie L. Groom, his wife. It alleges that she was, at all the times mentioned, his wife, that the defendant, a licensed physician, was employed by plaintiff to treat her, that she was thereupon placed under his care and that he was negligent, careless, ignorant, and unskillful, that in consequence of his ignorant, unskillful, negligent, and careless treat

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ment of her, the particulars whereof are set forth at length, she died, and that by reason of said negligent and wrongful acts resulting in her death the plaintiff has suffered damage in the amount of twenty-five thousand dollars. We cannot discern wherein the complaint lacks in the averments essential to a good cause of action by the husband, as an heir of the wife, for damages accruing by reason of her death occasioned by the wrongful act or neglect of another, a right of action expressly given by section 377 of the Code of Civil Procedure. It was not necessary to expressly allege that he was her heir. It is alleged that she was his wife at the time of her death, and as surviving husband, he would, under any ordinary circumstances, be her heir.

(Knott

v.

McGilvray,

124 Cal. 129, [56 Pac. 789].) The respondent points out no particular wherein it is defective as a cause of action of that character.

One ground of demurrer was that the complaint was uncertain because it could not be ascertained therefrom whether the action was for damages to the wife during her lifetime, or for damages to the husband resulting from injuries to the wife. Another ground was that there was a misjoinder of actions, in that it stated a cause of action for each of the above-mentioned injuries. The only damage alleged is that to the husband resulting from the death of the wife. It could not be upheld as an action for damages caused either to the husband or wife during her lifetime. There is no such uncertainty, and but one cause of action is stated, namely, an action for damages to the husband as an heir of the wife, for a negligent injury causing her death.