Sac. No. 1999.
August 21, 1913.
APPEAL from a judgment of the Superior Court of Sacramento County. C.N. Post, Judge.
The facts are stated in the opinion of the court.
Charles B. Harris, and John C. March, for Appellant.
J.P. Coghlan, L.T. Hatfield, and Wm. B. Bosley, for Respondent.
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-car operated by the defendant corporation in the city of Sacramento. (See Basler v. Sacramento Electric, Gas Railway Co., 158 Cal. 516, [Ann. Cas. 1912A, 642, 111 P. 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 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. Basler 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. Basler 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. Basler 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. Basler 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.
Appellant cites many authorities to sustain his position that this is an action ex contractu, but his pleading does not come within the rule announced by any one of them. It is true that in many instances a person who has been injured may elect to sue either in tort or in contract, but this action is clearly based upon the injury and not upon the agreement of carriage and it comes under the provisions of subdivision 3 of section 340 of the Code of Civil Procedure. It is true that the complaint avers the fact that Mrs. Basler paid her fare and the further facts that she was received as a passenger by defendant and was injured by the negligence of its servants while she was such passenger, but there is no allegation that her husband was deprived of her services or that she was put in need of medical attention by reason of the breach of the contract of carriage. The language of the pleading which of course must be taken most strongly against the pleader does not show any reliance upon a breach of the contract of the defendant to transport Mrs. Basler safely. The pleader was evidently following the common practice of setting up the contract of carriage as matter of inducement, to show that the person injured was not a trespasser and that by reason of the relation of passenger and carrier a definite legal duty arose on the part of the latter. In such actions where, as here, the breach of duty and the consequent injury to the passenger are set forth, such violation of its obligation by the common carrier is the gravamen of the action which arises ex delicto and not ex contractu. (Canaday v. United Railways Co., 134 Mo. App. 282, [114 S.W. 88]; Atlantic Pacific R.R. Co. v. Laird, 164 U.S. 393, [41 L. Ed. 485, 17 Sup. Ct. Rep. 120]; Sherman v. Western Stage Co., 22 Iowa, 557; Burrell v. Preston, 54 Hun, 70, [7 N.Y. Supp. 177]; Saltonstall v. Stockton, 21 Fed. Cas. No. 12,271.) Actions for damages because of the forcible ejection from a train of a passenger who is entitled to ride thereon by reason of a contract evidenced by a ticket commonly sound in tort and not in contract. (Head v. Georgia Pacific Ry. Co., 79 Ga. 360, [11 Am. St. Rep. 434, 7 S.E. 217]; Gorman v. Southern Pacific Co., 97 Cal. 1, [33 Am. St. Rep. 157, 31 P. 1112]; Northern Pacific R. Co. v. Pauson, 70 Fed. 588, [17 C.C.A. 287, 30 L.R.A. 730].)
In Webber v. Herkimer, 109 N.Y. 313, [16 N.E. 358], the question presented was whether or not a statute of limitations limiting the time within which an action to recover damages for "a personal injury resulting from negligence" was applicable to the pleading in that case. The court held that whether the action was in form one arising ex contractu or ex delicto, the liability was referable to the common carrier's negligence and came within the statute relating to the limitation upon actions to recover damages for personal injuries and not to that prescribing the time within which a litigant might sue for damages for breach of contract.
It has been held that the word "for" means "by reason of," "because of" and "on account of" and that a statute prescribing a limitation on "actions for injury to the person . . . caused by negligence" should be interpreted to mean "actions `by reason of' or `because of,' or `on account of' injuries to the person caused by negligence." (Sharkey v. Skilton, 83 Conn. 503, [ 77 A. 950].) Applying this rule to our own statute we must hold that the language of section 340 quoted above refers to actions for damages "on account of" personal injuries. In Sharkey v. Skilton, the plaintiff was the husband of the injured woman and there, as here, counsel sought to make a distinction between the direct injury to the wife and the indirect damage and loss to the husband, but the court held that both harmful results had their efficient cause in the accident to her and that therefore the same statute of limitations applied to actions in which the wife was a party and to those in which the husband sued alone because of his relative rights.
Maxson v. Delaware, Lackawanna Western R.R. Co., 112 N.Y. 560 [20 N.E. 544], was a case similar to this in which the husband sued for the loss of his wife's services because of injuries received by her on account of the defendant's negligence. It was held that his cause of action was governed by the statute prescribing the time within which an action might be commenced for a "personal injury, resulting from negligence."
We see no escape from the reasoning of the foregoing authorities. The demurrer was properly sustained for the reason that the cause of action was pleaded as one arising ex delicto, but even if we should regard it as arising upon contract, nevertheless the damages sought are directly referable to the personal injuries suffered by Mrs. Basler and consequently the time for the commencement of the action is limited by the terms of subdivision 3 of section 340 of the Code of Civil Procedure.
Lorigan, J., and Henshaw, J., concurred.