A demurrer to the complaint in this case having been sustained without leave to amend and the judgment having been accordingly entered in favor of the defendant, an appeal therefrom is taken by plaintiff.

The action was commenced by the administrator of the estate of Albert D. Shepard on behalf of a nephew of the deceased, for damages alleged to be due by reason of the death of said Shepard caused by the negligence of defendant’s servant. There were three counts in the complaint, all of them setting forth the alleged interest of Wayne Shepard, the minor in whose behalf the action was brought. According to these averments Albert D. Shepard was over the age of twenty-one years; he was a housesmith earning from seven dollars and fifty cents to twenty dollars a day; was employed to place certain iron fittings in and about the elevator shafts in defend ant’s building, and in the performance of said work it became necessary for him to project himself into the elevator shafts as defendant well knew. While he was so performing his duties, defendant’s night watchman negligently set in motion one of the elevators which, striking Albert D. Shepard, caused his death. There was no contributory negligence on the part of said Albert D. Shepard. It was further alleged that Albert D. Shepard left surviving him two brothers and Wayne Shepard, aged six, the son of a deceased brother; that Wayne’s mother was in impoverished circumstances and was unable to maintain her child; that Wayne Shepard was supported by his uncle Albert; that the latter regularly contributed sums varying from fifty dollars to seventy-five dollars per month for the maintenance of his said nephew; that plaintiff knew of no damage sustained by the brothers of the deceased; and that Wayne Shepard was damaged in the sum of twenty-five thousand dollars for the carelessness of defendant in causing the death of Albert D. Shepard.

Appellant insists that section 1970 of the Civil Code, which was adopted many years after section 377 of the Code of Civil Procedure went into effect, does not repeal the latter section, but that the right of action is cumulative with that conferred by the Code of Civil Procedure. Appellant’s theory of the relation between these two sections is that while the third paragraph of section 1970 of the Civil Code may in some degree modify the right of action conferred by section 377 of the Code of Civil Procedure, it' restricts that right of action only so far as it would arise from a state of facts contemplated by the second paragraph of section 1970 of the Civil Code, and in no manner changes the right of action conferred by the Code of Civil Procedure arising by reason of the death of an employee caused by the negligence of a fellow-servant in a different department of labor. In order that we may the better analyze these theories it may be well to quote the two sections:

We can see no reason for adopting the reading which would make the words “received as aforesaid” refer only to the second paragraph of section 1970 of the Civil Code. The main purpose of the amendment to that section, adopted in 1907, was the modification of the “fellow-servant” doctrine whereby only pleading and proof that the injury or death was caused by the negligence of a coemployee in the same department of labor with the person injured or killed was available as a defense. The legislature might well have believed that in thus curtailing this defense, it should in fairness to defendants more accurately than did section 377 of the Code of Civil Procedure designate the persons for whose benefit the personal representative of one who had been killed because of another’s negligence might prosecute an action, but whatever may have been the purpose, the words “received as aforesaid, ’ ’ neither in themselves nor because of their location in the section indicate the intention of giving them a special limitation to the paragraph preceding the one in which they are used. Giving to these words- their ordinary meaning they apply as well to the case of an employee killed through the negligence of a fellow-servant as to one whose death is caused by the defective or unsafe condition of machinery or appliances furnished by an employer. The complaint here, as appellant insists, is one which charges the death of plaintiff’s decedent through the negligence of ,a fellow-servant engaged in another department of labor; but in such a case no right of action accrues to an administrator on behalf of a nephew of his decedent. As Wayne Shepard does not come within any of the classes mentioned in paragraph 3 of section 1970 of the Civil Code, no cause of action is stated in the complaint, no matter what pecuniary loss said nephew might suffer by reason of his uncle’s death. This reading of section 1970 of the Civil Code does not interpret that section as repealing section 377 of the Code of Civil Procedure. The last named section appears in that part of the code relating to “parties to civil actions.” Section 1970 of the Civil Code does not take away the “right of action” by a personal representative as outlined in section 377 of the Code of Civil Procedure, but it does affect the “cause of action” when such representative seeks damages on behalf of a collateral relative of his decedent of the third degree. In such a case no recovery is possible. It is to be noted also that section 377 still gives a right of independent action to heirs which is not granted by the Civil Code; but when an administrator brings suit his powers are limited by section 1970 of the Civil Code, which is the last declaration of the legislature on the subject.

The judgment is affirmed.

Henshaw, J., and Lorigan, J., concurred.