Skip to main content


Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.


Civ. 15648.

Decided: July 02, 1947

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty., and Edwin F. Shinn, Deputy City Atty., all of Los Angeles, for appellant. C. F. Jorz, of Los Angeles, for respondent.

The complaint herein alleges that an employee of plaintiff, while acting within the course and scope of his employment, received bodily injuries which were proximately caused by the negligence of Louis M. Howard, since deceased; that plaintiff, as a result of such injuries, furnished medical attention and paid compensation to its said employee pursuant to the provisions of division 4 of the Labor Code of the State of California, in the sum of $3,652; that plaintiff subsequently filed a claim for the repayment to it of such sum with Mattie V. Howard, as administratrix of the estate of said tort-feasor, which claim was rejected in full.

Appeal is taken by plaintiff from a judgment of dismissal entered after defendants' oral general demurrer was sustained without leave to amend upon the ground that plaintiff's cause of action abated upon the death of the tort-feasor.

The sole question presented for determination herein is whether an employer may maintain an action against the estate of a deceased person to recover the money he has expended under the provisions of division 4 of the Labor Code because of injury to or death of his employee, proximately caused by the negligence of such person during his lifetime? Our answer to this query is in the affirmative.

The cause of action alleged in plaintiff's complaint differs from the injured employee's common-law action for damages. The legislature, by the enactment of section 3852 of the Labor Code, created a new cause of action for the employer entirely separate and distinct from the right of action of the employee. Limited Mutual Comp. Ins. Co. v. Billings, 74 Cal.App.2d 881, 882, 169 P.2d 673.

Section 3852 of the Labor Code (Div. 4, Pt. 1, Ch. 5) provides: ‘The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, or who pays, or becomes obligated to pay salary in lieu of compensation, may likewise make a claim or bring an action against such third person. In the latter event the employer may recover in the same suit, in addition to the total amount of compensation, damages for which he was liable including all salary, wage, pension, or other emolument paid to the employee or to his dependents.’

It being thus clearly apparent that the plaintiff herein would have had a good and sufficient cause of action against the decedent during his lifetime for recovery of the moneys so expended, our next problem is as to whether such cause of action survives his death and may be prosecuted against his estate.

Section 574, Probate Code, provides, in part: ‘[A]ny person, or the personal representative of any person, may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the property of any such person or committed any trespass on the real property of such person.’ In the recent case of Hunt v. Authier, 28 Cal.2d 288, 295, 169 P.2d 913, our Supreme Court has declared that the substitution by the legislature of the all-inclusive word ‘property’ for the term ‘goods and chattels' shows an intent to recognize every property right or interest as ‘property’ and to place no restrictions or limitations on the type of property for the injury to which compensation may be recovered from the estate of the wrongdoer and to make no distinction as to the method by which such destruction or injury is effected.

The payment by plaintiff of money for medical attention and compensation to its injured employee pursuant to the obligation imposed upon it by the provisions of the Labor Code caused a property injury to plaintiff within the meaning of section 574, Probate Code. Morris v. Standard Oil Co., 200 Cal. 210, 214, 252 P. 605; Hunt v. Authier, supra, 28 Cal.2d at page 296, 169 P.2d 913. Plaintiff's complaint against the administratrix of the estate of the tortfeasor for recovery of the moneys so expended stated a proper cause of action and the demurrer of defendant should have been overruled.

The judgment is reversed with directions to the trial court to make an order overruling the oral general demurrer of defendant.

KINCAID, Justice pro tem.

SHINN, Acting P. J., and WOOD, J., concur.

Copied to clipboard