Basler v. Sacramento Elec., Gas & Ry.

MELVIN, J.

This is an action by Charles M. Basler, husband of Bessie M. Basler, in which he asks damages for loss of her services and for the expenses incurred for medical care, both causes of action following and resulting from injuries received by Mrs. Basler while a passenger on a street-ear operated by the defendant corporation in the city of Sacramento. (See

Basler

v.

Sacramento Electric, Gas &

Rai

lway Co.,

158 Cal. 516, [Ann. Cas. 1912A, 642, 111 Pac. 530].) Mrs. Basler was injured November 17, 1906, and the complaint in the present action was filed November 16, 1908, just one day within two years thereafter. Defendant demurred, setting up the statute of limitations. (Code Civ. Proc. sec. 340, subd. 3.) The demurrer was sustained and this appeal is taken from a judgment dismissing the action for want of prosecution.

The only point involved is whether the limitation upon the time of commencing this action is expressed in the statute cited above or in subdivision 1 of section 339 of the Code of Civil Procedure. It is the theory of the plaintiff and appellant that his causes of action are based upon contract and not upon tort. Subdivision 3 of section 340 of the Code of Civil Procedure prescribes a period of one year as the

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time within which an action may be commenced “for injury to or for the death of one caused by the wrongful act or neglect of another.” Subdivision 1 of section 339 of the same code provides that “an action upon a contract, obligation or liability not founded upon an instrument in writing” may be commenced within two years from the time of the origin of the cause of action.

The two elements of damage for which this suit was prosecuted are pleaded in separate counts, in each of which the essential matters upon which the claim of plaintiff is based are set forth in the following language: “the defendant as such common carrier of passengers, received the said Bessie M. Easier on one of its cars, and received her fare for carrying her as such passenger on said cars, and while she, the said Bessie M. Easier was such passenger on one of defendant’s cars and was as such, being carried as a passenger thereon and therein, the defendant by and through its agents, servants and employees, and through the negligence and carelessness of its said agents, servants and employees, so negligently and carelessly operated and ran said cars as such common carrier of passengers for hire, that the said Bessie M. Easier was by reason of such negligence, violently thrown against one of the seats, in said car and on the floor thereof, in such manner that by reason thereof, she was greatly injured, wounded, cut and bruised.” It is further pleaded that “by-reason of the said injuries,” the said Bessie M. Easier became incapacitated for the performance of her duties as a housewife and that certain expenses were incurred for nursing her and giving her proper medical care.