I dissent. Without reference to the other questions presented for decision, I think that this action is barred by limitation of time. The right to maintain an action for damages for a death caused by wrongful act is of statutory origin. By act approved April 26, 1862 (Stats. 1862, p. 447), the liability for such damages was created. It contained a proviso "that every such action shall be commenced within two years after the death of such deceased person". In 1872 this legislation was transferred into the new Code of Civil Procedure, section 377, without the proviso, but the same two-year limitation was continued by placing the same in subdivision 4 of section 339 of that code. By amendment in 1873 this became subdivision 3 of the section. In the year 1905, said subdivision 3 was stricken from the section, and at the same time the period of limitation was reduced to one year by placing such actions in the list of actions subject to the one-year limitation, as provided in section 340, Code of Civil Procedure, in subdivision 3 thereof. As thus amended these provisions of law were in force at the time of commencement of the present action.
In Benjamin v. Eldridge, 50 Cal. 612, an action precisely like the action in the case at bar was commenced against the stockholders of a corporation to recover compensation for the death of one Blair, caused by the wrongful and negligent acts of the corporation. The action was commenced more than two years, but less than three years, after the day of Blair's death. The defendant by demurrer pleaded that the cause of action was barred by the provisions of section 339 of the Code of Civil Procedure, that is to say, by the two-year limitation then in force under the terms of that section. The demurrer was sustained and on appeal from the judgment this ruling was sustained by the Supreme *Page 297 Court. After reciting the legislative history, the court declared that the cause of action was barred by the lapse of the period of two years after the date of Blair's death.
It cannot reasonably be denied that if section 340, Code of Civil Procedure, is controlling in the present action the plaintiffs' cause of action was barred thereby. But it is contended, because the action is one to enforce a liability created against the stockholders of a corporation, that by reason of the provisions of section 359, Code of Civil Procedure, such period of limitation has been extended to three years. Said section 359 was enacted in the year 1872, and has not been amended. The decision in Benjamin v. Eldridge, supra, was rendered in the year 1875. While the death of Blair occurred in December, 1871, the action was not commenced until the year 1874. At the time of adoption of section 359, in the year 1872, the then existing two-year period of limitation for that action had not expired. It is clear that if that section had the effect of superseding the provisions of section 339, as applied to an action of this description against the stockholders of a corporation, the Benjamin case would have been commenced within time, and would not have been barred by the statute. In the Benjamin case no reference was made to section 359, and possibly the court did not have it in mind. Nevertheless, I think that the decision was right. It is my opinion that the provisions of the two sections, 340 and 359, Code of Civil Procedure, may be harmonized by treating the provisions of section 340, establishing the one-year limitation in actions to recover damages for death by wrongful act or neglect, as an exception to the more general description of "liability created by law" in section 359, and I think that this conclusion is in accordance with the legislative intention. This conclusion is strengthened by consideration of the fact that the amendment of section 340, providing that an action to recover damages for the death of one caused by the wrongful act or neglect of another must be commenced within one year, is an enactment of later date than that of section 359
A petition by respondents to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on March 15, 1934. *Page 298