A demurer to the complaint was sustained in the court below and judgment rendered for defendants. Plaintiff appeals from the judgment.
The demurrer was properly sustained, and the judgment is right. The complaint shows these facts: The father of appellant, Otto Daubert, was killed by the alleged negligence of the Western Meat Company, defendant. Afterwards the defendant herein, Annie T. Daubert, widow of said Otto, brought an action, as his heir, against said Western Meat Company to recover damages for his death, under section 377 of the Code of Civil Procedure; and in said action she recovered a judgment, which was entered March 4, 1898, against said company for five thousand dollars, which judgment was afterwards, upon appeal by the defendant therein, affirmed by this court. At the time of the death of Otto, at the time of the commencement of the said action by his widow, and at the time of the rendition and entry of the judgment therein, the present plaintiff was not in existence, being at all said timesen ventre sa mere and a part of her mother. After the entry of the said judgment in favor of the mother, the plaintiff herein was born, and this present action was commenced in her name by her guardian to recover another judgment against the Western Meat Company for the death of said Otto. Annie T. Daubert was made a defendant herein because she refused to join with plaintiff.
The former judgment in favor of the mother is a bar to the present action. The action is statutory. The provision of said section 377 is, that "an action" may be brought either by the heirs or the personal representative of the deceased; and it has been held that — at least, as between the *Page 488 heirs and the personal representative — "but one action is permitted." (Munro v. Pacific Coast etc. Co., 84 Cal. 515.1) We are not concerned here with questions which might arise where an action was brought by only one or two of several existing heirs, — whether, in such case, a suit by some of the heirs would bar a subsequent suit by others, or whether the latter would be confined to their right of contribution, or what the duty of a defendant would be where it appeared from the complaint that there were other heirs not joined as plaintiff, or whether the code allows a defendant under any circumstances to be harrassed by more than one suit by an heir. In the case at bar it appears from the complaint that at the time when the widow commenced her action, and recovered judgment, she was the only heir of the deceased; and that being so, her judgment was clearly a bar to another action. There was no other heir entitled to bring the action, or be joined with her as plaintiff, and she herself had all the right given by the code to "heirs." The defendant in that action could do nothing more than defend on the merits.
It is not necessary, therefore, to follow counsel in their discussion of the question whether a posthumous child can under any circumstances recover for the death of its father, occurring before its birth, and when it was only a part of her mother and not a human being or person.
The judgment is affirmed.
Henshaw, J., and Temple, J., concurred.
1 18 Am. St. Rep. 248.