AILEEN MARY WARD et al., Appellants, v. A. B. JONES et al., Respondents, 39 Cal. 2d 756

SHENK, J. This is an action for damages for wrongful death as authorized by

section 377 of the Code of Civil Procedure.. That

section provides that “when the death of a person ... is caused by the wrongful act or neglect of another, hi's heirs . . . may maintain an action for damages against the person causing the death ...” The plaintiffs are the widow and minor children of Joseph T. Ward, deceased. The complaint, later amended, was filed on March 29, 1949. The appeal is from a judgment of dismissal of the action following an order sustaining a general demurrer without leave to amend. The decedent was a painter employed in the Department of Water and Power of the City of Los Angeles.

On July 12,1948, he was a member of a crew of department employees then engaged in painting an electrical transmission line tower. This tower supported high tension wires carrying an electrical potential of approximately 130,000 volts. While Ward and his fellow employees were engaged in the discharge of their departmental duties he was injured by coming in contact with a high tension wire and died two days later. The liability of the employer city was prescribed and limited by the death benefit provisions of workmen’s compensation laws of the state, and the city is therefore not a party defendant in this action.

The defendants were fellow employees of the decedent.

The complaint alleges that it was extremely hazardous for any painter to work on the transmission line towers when the wires were energized; that reasonable care required: that the current be turned off while painters worked on the towers; that neither painters, planks, scaffolding nor rigging, except of the nonconducting quality, be permitted to come within 10 feet of the energized wires; that competent electrical mechanics be stationed at all times between the wires and painters working on the towers, and that painters be required to wear safety belts while so working.

It is also alleged that none of the foregoing precautions had been taken for a long period of time prior to the accident which caused Ward’s death; that each of the defendants was aware of this fact, but in neglect and disregard of his duties as an employee of the department “carelessly and negligently” failed to take any steps to remedy the situation.

The complaint then alleges that the electrical mechanic assigned to the job insisted that certain precautions be provided to protect the painters from the dangers of the high tension wires but that the defendant O’Connor “in wilful, negligent'and reckless” disregard of the safety of members of said crew, adopted the practice of working and did cause his painting crew to work in dangerous proximity to the high tension wires, without the protection of competent electrical mechanics; that on the day of the fatal accident the deceased was a member of the painting crew that was “negligently directed by the defendants” Williams and Phillips to paint the tower which was in dangerous proximity to the high'tension wires.

A verified claim for damages stating the necessary information was filed with the city clerk on October 8, 1948, by the plaintiff widow. The complaint does not allege that any claim for damages was presented to or served upon the defendants or any of them, and they received no actual notice that an action would be brought against them prior to the service of the complaint in this action.

Section 1981 of the Government Code provides: “Whenever it is claimed that any person has been injured or any property damaged as the result of the negligence or carelessness of any public officer or employee occurring during the course of his service or employment . . . within 90 days after the accident has occurred a verified claim for damages shall be presented in writing and filed with the officer or employee and the clerk or secretary of the legislative body of the . . . municipality ...” It is the contention of the plaintiffs that

section 1981 does not apply to actions for wrongful death. It may not be denied that if that

section does apply to wrongful death cases a verified claim must be presented to an employee sought to be charged within 90 days after the accident. In Veriddo v. Renaud, 35 Cal.2d 263, it was said, at page 265 [217 P.2d 647], that by

section 1981 the Legislature “has extended to public officers and employees, who incur liability in the performance of government service, the protection of a claims statute and the privilege of having defended at public expense those damage suits which are enumerated” in the code. This court cited with approval the ease of Huffaker v. Decker, 77 Cal.App.2d 383 [175 P.2d 254], in which the defendant city employee was sued for damages allegedly caused by the negligent driving of an automobile owned by the city and driven within the scope of the defendant’s employment. It was held that the failure of the plaintiff to allege compliance with the claim provisions of

section 1981 was fatal to his cause of action. The plaintiffs contend that the

section contemplates only a claim on behalf of the person injured; that an heir under the death statute can in no sense be deemed to he the person injured; that this concept is fortified by the use of the words “after the accident has occurred,” and that thus the time of death as the time of the accident is excluded. In an analogous situation this court has held that an heir of the deceased is a person injured within the terms of the death statute. In Arellano v. City of Burbank, 13 Cal.2d 248 [89 P.2d 113], the liability of the municipality in a wrongful death case pursuant to the Public Liability Act of 1923 (Stats. 1923, p. 675; Gov. Code, § 53051), was sustained.

Section 2 of the act there under consideration provided that in certain cases municipalities should be liable for “injuries” to persons and property resulting from dangerous or defective condition of public streets. In holding that the statute authorized the city’s liability for wrongful death this court at page 258 cited and quoted with approval from Bennett v.

Kings County, 124 Cal.App. 147, where it was said at page 150 [12 P.2d 47] : “Aside from the consideration of any other statutes, we are unable to see why the ‘injuries to persons’, referred to in this statute, do not include such injuries as may be caused to persons by reason of the death of others as well as injuries to persons directly involved not resulting in death. We think the injury suffered by these plaintiffs is covered by the statute and that the demurrer was properly overruled.” A different intent should not be attributed to the use of the same language in another section.

An intent to include liability for injuries to persons and property flowing from wrongful death is read from the language in the

section imposing liability. An intent to exclude the obligation to file a claim due to such injuries may not therefore be read from the similar language in

section 1981 of the Government Code. As used in that

section the language likewise is plain and sufficiently similar to warrant the conclusion that the Legislature intended it to have the same meaning in each section. That language, referring to injuries to person and property, must be deemed to be all inclusive in both sections. The Arellano case was decided in 1939. That a sufficient claim is required in cases of wrongful death has been thereafter assumed. (See Cooper v. County of Butte, 17 Cal.App.2d 43 [61 P.2d 516]; Huey v. City of Los Angeles, 137 Cal.App. 48 [29 P.2d 918] ; Beeson v. City of Los Angeles, 115 Cal.App. 122 [300 P. 993].) With this construction placed upon the

section the Legislature has not seen fit to change the statutory requirements of presenting a claim in wrongful death cases. It is contended by the plaintiff that

section 1981 applies only in cases of alleged “negligence and carelessness,’’ that this complaint alleges something more in that the word “wilful” appears in one allegation and thereby excludes the cause of action from the operation of the section. This contention may not prevail.

As above indicated it is alleged that by failing to take proper precautions to protect the painting crew the defendants “in violation, neglect and disregard of their various duties and responsibilities as officers and employees of said Department of Water and Power, carelessly and negligently failed to take any steps to remedy the same”; that the deceased was a member of a painting crew that “was negligently” directed by the defendants to paint one of the towers. As to the defendant A. J.

O’Connor alone it is alleged that “in wilful, negligent and reckless” disregard of the lives and limbs of his crew, he had followed the practice of working and did cause his painting crew to work in dangerous proximity to said high tension wires; and that O’Connor’s “practice” was with the knowledge, consent, authority and direction of his codefendants. Taking into consideration the complaint as a whole, wherein the same acts are alleged to constitute negligence and carelessness on the part of all of the defendants, the pleading states a cause of action based on negligence within the meaning of

section 1981 and would be sufficient as such as against the general demurrer, but for the intervention of the claims statute. It is also urged that

section 1981 is not applicable to this case because when death occurs as a result of the tortious act the time for presenting the claim is too uncertain. The

section provides that the claim must be presented within 90 days after the “accident has occurred.” It is argued that the “accident” is the occurrence causing the injury and that the injured party may die more than 90 days after the event causing the injury, thus making compliance with the time element impossible. It is unnecessary here to determine whether the word “accident” as found in the statute should be held to refer to the event that gave rise to the injury to the plaintiffs, namely, the death of the deceased, for the purpose of determining the commencement of the statutory period.

Since the plaintiffs filed no claim at all against the defendants, a determination in that respect would not resolve any issue in this case. It is concluded that the attempted cause of action against the defendants is based on negligence; that

section 1981 is applicable; and that failure to comply therewith is fatal. Under these circumstances it does not appear that the complaint could be amended to state a cause of action. The judgment is affirmed. Gibson, C. J., Traynor, J., Sehauer, J., and Spence, J., concurred.