THE AETNA CASUALTY AND SURETY COMPANY (a Corporation), Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY (a Corporation) et al., Defendants; BECHTEL CORPORATION (a Corporation), Respondent, 41 Cal. 2d 785

SPENCE, J. Plaintiff is the compensation insurance carrier for an employer whose employee sustained an industrial injury allegedly caused by the negligence of third party defendants. In its fourth cause of action plaintiff sought to recover the employee’s general tort damages. The action was brought more than one year but less than three years after occurrence of the accident which caused the injury. A demurrer to this fourth cause of action was sustained without leave to amend, and from the judgment of dismissal accordingly entered, plaintiff appeals.

The determinative question is whether the fourth cause of action is governed by the one-year statute of limitations applicable to an action for damages “for the injury to . . . one caused by the wrongful act or neglect of another” (Code Civ. Proc., § 340, subd. 3) or the three-year statute applicable to an action “upon a liability created by statute” (Code Civ. Proc., §338, subd. 1).

The Labor Code authorizes the employer or its insurance carrier to bring an action against the third party tort feasor (§§ 3850, 3852) and to include therein the general damages to the employee as well as the special damages to the employer for compensation and medical benefits (§ 3854). Assuming, without deciding, that this liability of the tort feasor to the employer or its insurance carrier for the employee’s general damages is one created by statute (cf. Limited Mutual Comp. Ins. Co. v.

Billings, 74 Cal.App.2d 881, 884-885 [169 P.2d 673], nevertheless under settled legal principles the trial court correctly concluded that the one-year statute applied. The employee’s general damage claim, whether prosecuted by the employee personally or by his employer or its insurance carrier on his behalf, is solely one in tort for personal injuries arising out of the negligence of the third party tort feasor; hence the cause of action accrues at the time of the negligent act. No matter who may be the party plaintiff, the cause of action is one within the express terms of subdivision 3 of

section 340 of the Code of Civil Procedure. That

section is a special statute controlling the time within which any action covering such injury may be commenced, and it prevails over the general statute applicable to actions based upon a “liability created by statute.” (Code Civ. Proc., § 338, subd. 1.) In line with this principle, the one-year statute has been held applicable to an action for personal injuries based upon the liability of the owner of an autqjnobile for imputed negligence of the driver thereof under

section 402 of the Vehicle Code (Franceschi v. Scott, 7 Cal.App.2d 494, 495-496 [46 P.2d 764]) and to an action for personal injuries based upon the liability of the driver’s parents who had signed and verified the driver’s application for an operator’s license as required by

section 352 of the Vehicle Code (McFarland v. Cordiero, 99 Cal.App. 352, 354-355 [278 P. 889]). Certainly if such principle applies in cases where a new person, by virtue of statutory authority, may be sued on a personal injury claim (see Ridley v.

Young, 64 Cal.App.2d 503, 509 [149 P.2d 76]), it should apply here where a new person, under statutory authority, may sue on a personal injury claim, There is nothing in the Labor Code (§§ 3850-3863) which would indicate an intention to impose a greater burden on the tort feasor if recovery on the employee’s damage claim is sought by the employer or its insurance carrier rather than the injured employee insofar as the time of suit is concerned. The tort liability to respond in general damages of the personal injury claim remains the same.

To hold otherwise would produce the anomalous result whereby the employee’s tort action would be barred if he undertook to prosecute it and yet the employer or its insurance carrier could recover damages at a later date for the employee on that same cause of action. Accordingly, plaintiff unavailingly argues that its “fourth cause of action” is governed by the general three-year statute of limitations applicable to a “liability created by statute.” (Code Civ.

Proc., § 338, subd. 1.) During the pendency of the appeal it was suggested that the judgment of dismissal of the fourth cause of action was not a final judgment, and was therefore not appealable. (Code Civ. Proc., § 963.) Counsel were then asked to stipulate regarding the status of the record.

According to their stipulation, the complaint was filed with one plaintiff and two defendants and embodied four causes of action: the first is against the Pacific Gas and Electric Company to recover on plaintiff’s own behalf the sum of $1,684.12, being the alleged amount of compensation benefits paid by it to the injured employee; the second is against the Pacific Gas and Electric Company to recover as statutory trustee for the injured employee (Lab.

Code, § 3854) the sum of $50,000 being the alleged general damages suffered by the injured employee; the third is similar to the first but against Bechtel Corporation to recover on plaintiff’s own behalf the same alleged amount of compensation benefits paid by it to the injured employee; and the fourth is similar to the second but against Bechtel Corporation to recover as statutory trustee for the injured employee the same alleged general damages suffered by him. Defendant Pacific Gas and Electric Company has never appeared in the action.

The nonappearance of defendant Pacific Gas and Electric Company in this action does not preclude the judgment with respect to the other appearing defendant from being a final appealable judgment. (Rocca v. Steinmetz, 189 Cal. 426, 428 [208 P. 964] ; Howe v. Key System Transit Co., 198 Cal. 525, 529 [246 P. 39] ; Young v. Superior Court, 16 Cal.2d 211, 215 [105 P.2d 363] ; Weisz v.

McKee, 31 Cal.App.2d 144, 147 [87 P.2d 379].) While there appears to be no authority on the effect of the admitted nonadjudication of the third cause of action in relation to the finality of the judgment entered on the fourth cause of action in favor of the same defendant, Bechtel Corporation, practical considerations and legal principles sustain the propriety of treating tliese two causes of action as separate matters for litigation in tbe discretion of the court. (See Code Civ.

Proc., § 579.) The judgment on the fourth cause of action was a final determination of the rights of plaintiff as statutory trustee seeking to recover general damages for the benefit of the injured employee.

As a final determination of the rights of plaintiff in that capacity, such judgment should be regarded as having the same measure of finality as would a similar judgment in an action in which there were two plaintiffs seeking their respective damages from the same defendant on two severable causes of action; (1) the insurance carrier for recovery of its own compensation expenditures; and (2) the injured employee for recovery of his own general damages. Such cases as Mather v. Mather, 5 Cal.2d 617 [55 P.2d 1174], and Greenfield v.

Mather, 14 Cal.2d 228 [93 P.2d 100], involve an entirely different situation in that there each of the successive judgments left undetermined between the same parties in their same individual capacities another alleged cause or causes of action for the same identical relief. Under the circumstances here, we conclude that the judgment of dismissal of the fourth cause of action is a final judgment within the meaning of

section 963 of the Code of Civil Procedure and is therefore appealable. The judgment is affirmed. Gibson, C. J., Edmonds, J., and Schauer, J., concurred.