Opinion
8-2-1963
John D. CROSS, George Richard Cross and David A. Cross, by and through their guardian ad litem Jeanne Howland, Plaintiffs and Appellants, v. PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent. Civ. 10546.
Ira M. Shadwell, Daniel S. Carlton, Richard J. Asbill, Redding, for appellants. Richard H. Peterson, R. A. Raftery, David R. Fuller, San Francisco, Laurence J. Kennedy, Jr., Redding, John B. Gibson, San Francisco, for respondent.
John D. CROSS, George Richard Cross and David A. Cross, by and through their guardian ad litem Jeanne Howland, Plaintiffs and Appellants,
v.
PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent.
Aug. 2, 1963.
For Opinion on Hearing, see 36 Cal.Rptr. 321, 388 P.2d 353.
Ira M. Shadwell, Daniel S. Carlton, Richard J. Asbill, Redding, for appellants.
Richard H. Peterson, R. A. Raftery, David R. Fuller, San Francisco, Laurence J. Kennedy, Jr., Redding, John B. Gibson, San Francisco, for respondent.
SCHOTTKY, Justice.
John D. Cross, George Richard Cross and David A. Cross, by and through their guardian ad litem Jeanne Howland, brought this action on November 7, 1961, to recover damages for the death of their father, allegedly caused by the negligence of the Pacific Gas and Electric Company. The demurrer of the defendant was sustained with leave to amend on the ground that the action was barred by the statute of limitations. (Code Civ.Proc. sec. 340, subd. 3.) The complaint was not amended since the alleged defect could not be cured. Judgment was entered and this appeal followed.
George Cross was electrocuted in 1956 when he came in contact with electrical power lines maintained by the Pacific Gas and Electric Company. He was survived by his wife, the guardian ad litem, and three minor children. His wife and children had the right to bring an action to recover damages for wrongful death pursuant to section 377 of the Code of Civil Procedure. However, the wife failed to commence an action within one year. The sole issue on this appeal is whether the wife's failure to sue within the one-year limitation bars the minor children's right of action, notwithstanding the tolling provision of subdivision 1 of section 352 of the Code of Civil Procedure.
The trial court in sustaining respondent's demurrer stated that while it believed that the California rule as announced in Sears v. Majors, 104 Cal.App. 60, 285 P. 321, and Haro v. Southern Pacific R. R. Co., 17 Cal.App.2d 594, 62 P.2d 441, was wrong, it nevertheless felt that it was bound by those decisions. (Hearing was denied in both by the Supreme Court.) We have concluded that the Sears and Haro cases were incorrectly decided and should not be followed.
In Haro v. Southern Pacific R. R. Co., supra, a wife allowed and action for wrongful death under section 377 of the Code of Civil Procedure to become barred by subdivision 3 of section 340 of the Code of Civil Procedure. The court held the children barred on the authority of Sears v. Majors, supra. The Sears case held for the first time that the children of a deceased parent were barred from maintaining a wrongful death action when their surviving parent failed to sue within the one-year statute of limitations period. The decision was predicated on the theory that section 377 of the Code of Civil Procedure created a single joint cause of action. The court then applied the rule that in a joint action where the right of action is barred to one it is barred to all and held the children barred.
In the Sears case the court relied on two cases to support the theory that section 377 of the Code of Civil Procedure created a joint action. One case was Robertson v. Burrell, 110 Cal. 568, 42 P. 1086. The case does not support the theory. It held only that the plaintiffs were not the proper parties to bring the action. It was not concerned with the question of whether the action was joint, and it was not a wrongful death action. The other case relied upon was Salmon v. Rathjens, 152 Cal. 290, 92 P. 733. (That case involved a worongful death action under section 377 of the Code of Civil Procedure.) At page 294 of 152 Cal., at page 735 of 92 P. the court said: '* * * So far as heirs are concerned, a single joint cause of action is given. The language of our statute permits no other construction. * * * An action by a portion only of the heirs is not the action authorized by our statute. All the heirs should, therefore, join as plaintiffs in an action by heirs, and, if the consent of any one who should be so joined cannot be obtained, he may be made a defendant. Code Civ.Proc. § 382. It would, therefore, seem that where all the heirs are not joined, and timely objection is made on that ground by a defendant, the action should be abated, or, at least, the other heirs should be made parties. * * *'
Salmon v. Rathjens, supra, was cited and relied on in Watkins v. Nutting, 17 Cal.2d 490, 110 P.2d 384, 388; Gilmore v. Los Angeles Ry. Corp., 211 Cal. 192, 295 P. 41; and Robinson v. Western States Gas, etc., Co., 184 Cal. 401, 194 P. 39, to hold that section 377 of the Code of Civil Procedure set up an action which was 'a joint one, a single one and an indivisible one, * * *.' The same thing was said in In re Estate of Riccomi, 185 Cal. 458, 197 P. 97, 14 A.L.R. 509, without reliance on Salmon v. Rathjens, supra.
We agree with the views expressed in a comment in 25 California Law Review 373, 374-375, which in commenting on the Haro case states:
'* * * The error of this and previous decisions seems to be the assumption that the action for wrongful death is a joint one, analogous to an action by joint tenants for trespass to realty. The Code, however, does not set up a joint cause of action, but merely requires that all the heirs of the deceased sue together. Each beneficiary joining has a separate 'relational interest' in the life of the deceased. The California courts have previously recognized this. In giving damages, the amount is determined in accordance with the various beneficiaries' separate interests in the deceased's life, and loss suffered by his death. Although usually the judgment is in a lump sum and the apportionment is left to the parties, it has been held not reversible error for the court to apportion the damages to each plaintiff.
'Since the action is not a joint one, the rule which has appealed to courts believing the action indivisible, that if one plaintiff is barred by a defense all are barred, does not apply. Each plaintiff has a separate right in the decedent's life and defenses good against one plaintiff are not fatal to others. The California courts have followed this theory in cases where one of several plaintiffs is guilty of contributory negligence, and have held that this defense bars only the guilty beneficiary's claim. A release or settlement by one of the heirs would be no bar to others having a right of action. No greater effect should be attributed to the statutory bar of the remedy of one of the heirs. * * * * * *
'There is some disagreement as to the nature of limitation of actions in wrongful death cases: whether it is a real Statute of Limitations, i. e. a bar to a remedy, or whether it is something more and goes to the existence of the right itself. By this latter rule, the period to sue is regarded as an absolute and arbitrary time limit during which the right of action exists, and after which there is none. In California, however, the former theory has been adopted and the limitation on the action is included in the general Statute of Limitations. It is suspended during the infancy of the claimants. While under another rule the decision might be supported on the ground that after one year the right of action would be lost against any person, infant or otherwise, regardless of other circumstances, this is not possible in California.'
We do not believe that the cause of action under section 377 of the Code of Civil Procedure is joint; said section merely requires that all beneficiaries sue together. Although the court in Salmon v. Rathjens, supra, used the phrase 'joint action,' the emphasis was on the proper joinder of parties. The unequivocal holding of Perkins v. Robertson, 140 Cal.App.2d 536, 295 P.2d 972, was that the decision in Salmon v. Rathjens, supra, and the cases relying thereon, only held that section 377 of the Code of Civil Procedure requires all heirs to join in one action and did not hold that a true joint cause of action was created. The court stated at page 543 of 140 Cal.App.2d, at page 977 of 295 P.2d: 'When it is said that an action for wrongful death is joint it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single it is meant that only one action for the wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible it is meant that there cannot be a series of suits by heirs against the tort-feasor for their individual damages. But while a 'lump sum' verdict is required, the total recovery is the aggregate of the pecuniary loss of each of the heirs entitled to recover by reason of the death of the deceased--the damages of each are added to produce the total Estate of Riccomi, 185 Cal. 458, 461, 197 P. 97 ; Robinson v. Western States Gas, etc. [& Elec.] Co., 184 Cal. 401, 194 P. 39; Simoneau v. Pacific Electric Ry. Co., 159 Cal. 494, 115 P. 320. And if an heir has not suffered pecuniary damage he cannot recover. Walker v. Etcheverry, 42 Cal.App.2d 472, 476, 109 P.2d 385.'
We believe that a proper construction of the language of all of the decisions of our appellate courts is that section 377 of the Code of Civil Procedure is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action. In both Salmon v. Rathjens, supra, and Knott v. McGilvray, 124 Cal. 128, 56 P. 789, an heir failed to join in the action. In each case the court held that the right to object for nonjoinder could be, and was, waived for failing to demur or answer for nonjoinder. (See also Perkins v. Robertson, supra, 140 Cal.App.2d 536, 543, 295 P.2d 972.) If every heir were an indispensable party to the action, failure to answer or demur for nonjoinder would not waive the objection, and it could be raised the first time on appeal. (Vecki v. Sorensen, 127 Cal.App.2d 407, 416, 273 P.2d 908; Hartman Ranch Co. v. Associated Oil Co., 10 Cal.2d 232, 73 P.2d 1163; Mitau v. Roddan, 149 Cal. 1, 84 P. 145, 6 L.R.A., N.S., 275.) And in Bowen v. Kizirian, 105 Cal.App. 286, 287 P. 570, and Bowler v. Roos, 213 Cal. 484, 2 P.2d 817, one plaintiff was barred from recovery because of contributory negligence but the other plaintiffs were allowed to recover.
Nor does it follow that because a 'lump sum' recovery is provided that only one joint cause of action exists. The damages suffered by each heir are added to produce the total recovery. (Perkins v. Robertson, supra; In re Estate of Riccomi, supra; Robinson v. Western States Gas & Elec. Co., supra.) The separate assessment of damages is consistent with the idea that each heir has a personal cause of action.
We believe that section 352 of the Code of Civil Procedure, which provides that as to a person who is under the age of majority '[t]he time of such disability is not a part of the time limited for the commencement of the action,' was intended to protect the rights of minors and that such rights should not be lost because a parent slept on his or her rights. We believe that a proper construction of section 377 is that only one action may be brought for wrongful death and that a defendant may only be subjected to one action for wrongful death. As applied to the case at bench, even though the wife's cause of action was barred by subdivision 3 of section 340, we think it would be inequitable, illogical and contrary to the intent of the Legislature in enacting sections 352 and 377 of the Code of Civil Procedure to hold the action of appellant minors to maintain an action for the wrongful death of their father was barred by the failure of their mother to file an action within the one-year period.
Appellants point to the following dictum in Leeper v. Beltrami, 53 Cal.2d 195, 208-209, 1 Cal.Rptr. 12, 22, 347 P.2d 12, 22, 77 A.L.R.2d 803: 'Does the fact that the statute was tolled as to Thomas Leeper help Abbie or only Thomas Leeper? If the cause of action were a joint one, the statute would be tolled as to both. 'If an action not severable is not barred as to one of the parties on account of his infancy at the time the cause of action arose, it is not barred as to either of the other parties.' II Wood on Limitations (4th Ed. 1916) 1079.'
On the strength of this dictum appellants argue that even if the cause of action were regarded as joint, the minority of the children tolls the statute as to all parties, including the widow. Since the widow is not a party to this suit, it is not necessary to measure the effect of the Leeper dictum or its impact on the Sears-Haro rule. (See Nolan v. Transocean Air Lines, 2 Cir., 290 F.2d 904.) Suffice it to say, that, in our opinion, the cause of action is several, not joint.
For the reasons hereinbefore set forth we have concluded that Haro v. Southern Pacific R. R. Co., supra, and Sears v. Majors, supra, relied on by respondent and by the trial court, rested upon an erroneous theory and should not be followed. As the Supreme Court stated in County of Los Angeles v. Faus, 48 Cal.2d 672, at page 679, 312 P.2d 680, at page 684: 'The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each instance by the discretion of the court; previous decisions should not be followed to the extent that error may be perpetuated and that wrong may result.'
We hold that section 377 of the Code of Civil Procedure gives each heir a cause of action for damages and that in prosecuting his cause of action he must join with all the heirs in one proceeding. Since each cause of action is separate, the statute of limitations runs individually against each heir. Therefore, the statute has not run against the plaintiffs here. They are minor children and pursuant to subdivision 1 of scetion 352 of the Code of Civil Procedure the statute does not begin to run until they individually reach majority. The running of the statute against their mother left their rights unaffected.
The judgment is reversed with directions to the trial court to overrule the demurrer.
PIERCE, P. J., and FRIEDMAN, J., concur.