*1 opinion stands, any pos- If this what case. by defendants expends money receive from the he can a benefit sible counsellor seemingly improvident who would be would waiting claim. After until client to settle such permit his memory time, has been dimmed honest witnesses wholly unavailable, unscrupu- witnesses are or until such fraud, and, everything gain with boldly assert can lous prosecute honest, the claim which nothing lose, can compassionate—and foolish—had laid out his generous, or money settle. ruling plaintiff uphold the of the trial court that
I would action, judg- state a cause of and would affirm the has failed to which followed failure amend of dismissal ment the time allotted. complaint within her Spence, J., Shenk, J., and concurred. petition rehearing
Respondents’ January denied Schauer, Shenk, J., J., Spence, J., 1951. voted for a rehearing. No. 21449. In Bank. A. Dec.
[L. 1950.] JR., CORT, Appellant, E. WILLIAM v. RALPH A. STEEN, Respondent. Administrator, etc., *2 Newlin, Holley, Rodney Williams, Liljestrom, F. & Hunter Sandmeyer Tackabury Appellant. & Quat- &
Belli, Ashe Dernier & Eckert and Sefton Pinney, & Appellant. trin, Amici Curiae on behalf of Jr., McGee, Parker, Stanbury, & and White Reese McGee Respondent. SHENK, judgment This isappeal following J. an from a sustaining the an order defendant’s demurrer complaint to the amend. The alleged without leave to action is based on the negligence automobile, of Emerald when her J. Steen in which riding plaintiff passenger, collided with a truck. April on 24, The collision occurred 1947. Thereafter Emerald January died. The action was commenced on 9,1948, Steen against her rejection the administrator of estate after the of a injuries A alleged claim. first cause of action person, damage property. and a second As the event of questions Steen the case involved indicates, Emerald J. alleged against of the causes of action as her survival of administrator. personalis law the maxim actio moritur cum
At common
persona applied
upon
to abate both causes of action
the death
filing
party.
Prior
and
of the
either
to the accident
survivability
complaint herein,
damage against the estate of a
tort feasor had been
deceased
determined in favor of beneficiaries under a death statute
(Prob. Code, 574;
(1946),
Hunt
Cal.2d 288
v. Authier
§
entry
1379]).
171 A.L.R.
After the
of the
judgment
filing
appeal
of a notice of
v. Smith
(May, 1949),
353], applied
The in Hunt determination v. Authier following and eases (Moffat Smith, supra; it v. Stuthman, Smith v. Cal.App.2d 79 123]; City Angeles 708 P.2d Howard, Los 80 v. Cal. [181 App. P.2d ; Wright, 2d 728 v. Cal.App.2d Nash 82 [182 278] 691]; Ott, 475 Mecum 92 Cal.App.2d v. 735 [186 [207 on 831]), rested the construction of section 574 of the providing damage Probate Code for in survival cases of to property. The 1949 statute added following sentence to ‘1 apply This section section: shall not to an action founded upon in wrong resulting physical injury any a or death of by person.” the same session At the same enactment the Legislature section 956 provide: added to Civil to Code thing arising “A of wrong in action out a in which results physical injury person to the imposing out of a or liability injury by shall for such not abate of the death reason wrongdoer any or person damages other liable for by injury, such person injured nor reason of the of the person any thing or of other who owns such action. 440 an action dies entitled to maintain such
When damages injury judgment, before recoverable for such earnings expenses or sustained shall be limited loss his injury as result of deceased incurred a damages suffering death, pain, and shall include or pros disfigurement, punitive exemplary damages, nor nor pective earnings The dam profits or after the date of death. ages part form estate recovered shall of the of the deceased. making Nothing in construed this article shall be such assignable.” thing in action 573 of the Probate Code Section by or was also amended to make such actions maintainable against respective administrators or executors of the deceased they persons plaintiffs who would been or defendants had have lived. defendant cause of action
The contends that property damage fell with the 574 as to amendment section Code; prospective operation and that of the Probate recovery precludes to the Code as to both causes addition Civil of action. Authier under Hunt (28 at basis of survival v. Cal.2d Smith, under v. was the exist p. 290), and therefore against feasor time of of action the tort at the ence of a cause By 574 of the Probate Code survival section his death. damage defined in recovery property was limited repeal 1949 act did not constitute a of the cases. The those recovery. such as it related to Survival survival injury cases was lifted and death extent to that included in and with extensions was Probate Code from the was therefore in effect Code. There 956 of the Civil section provision applicable herein a survival involved at all times (Estate Mar damage. cause of Joaquin etc. Irr. Co. v. 1053]; tin, San 225 P. 153 Cal. [94 Mfg. Perkins Co. v. Stevinson, 221, 234 Cal. P. ; Co., 228, 1, A.L.R. P. Const. Cal. Clinton Court, Justice’s 26 Cal.2d Sekt Davis, Cal.App. 500, 833]; Chambers A.L.R. *4 Meyer, Cal.App. 611, P.2d Gastineau Naegely, Cal.App.2d ; Estate 31] of operation continuous was no break in the 715].) there Since damage, doctrine provision a survival supports continuity declared in the above cases statutory damages. of action for such provision no the law of this 1949 there was under Prior to inju- of actions recover for the survival state only the statutory affect provisions survival If the ries. that in the remedy procedure, or conclusion would follow well express provision applies enactment absence of an (San party prior Bernardino where a died to its effective date. seq. County Comm., 618, v. Industrial Acc. 217 Cal. et 673].) retrospective That case also indicates when impair as an application express implied will be invalid rights. ment of vested concerning prospec retroactive or provision express
No
1949 statute. Whether such
was included
operation
tive
(See
appear.
does not
Survival
provision was considered
Lawrence
Proposal
Legislation,
Actions, a
Tort
California
of the Law
63;
Recommendations
Livingston, 37 Cal.L.Rev.
cf.
Relating to
Legislature
Survival
Revision Commission
New York
Injury, State of
Action for Personal
of Causes of
Report, Recommendations and
Law Revision Commission
New York
166.)
Commission
1935, p.
at
Studies
express provision that the
Legislature an
recommended to its
arising
of action
after the
apply
statute
to all causes
survival
arising
all causes
before the effective
date, and that
effective
governed.by existing law. A Wisconsin survival stat
date be
apply
pend
not
expressly provided that the act should
ute
ing litigation.
Johnson,
(See Kertson v.
This effect from a brief consideration of the nature of surviv- indicated vagueness origin, In ability spite actions. its in tort uncertainty meaning, criticism which it of its and the personalis subjected, the maxim actio moritur cum has been (See persona firmly become imbedded the law. collec- has *-' n Revi- Report and texts in of the New York Law of cases *5 442 supra, pp. 172-179.) Courts have treated Commission,
sion
merely
referring
remedy,
but to the
phrase
as
not
to
right
itself. Thus “abatement” as used in
or cause of action
nonsurvivability doctrine, did
determining
effect of the
meaning
of actions
not have the same
as abatement
which
representatives.
against personal
could be revived for or
Under
by
the action
the doctrine the abatement of
the death of the
injured
through
otherwise,
the tort feasor’s act or
feasor,
wrong
of the tort
was deemed to abate
death
legal concept
For in
death
well.
was considered not to be
injury.
(Baker
(1808), per
an
v. Bolton
Lord Ellenborough,
Camp. 493,
Eng.Rep. 1033.) Recovery
1
solely puni
170
representatives
tive, and the deceased’s
had not received or
capacities
in
wrong
(3
committed the
their
Bl.Comm.
‘‘
” “
’’
302.)
discharged,
(Restatement
terminated
Since
(see
Torts, 900),
or “dissolved” the cause Winfield, Death
§
Affecting Liability
Tort,
in
29
239),
Columb.L.Rev.
a sur
right
vival
was deemed to create a
or cause
action,
existing
right,
rather than to continue
or to revive or extend
remedy theretofore accrued
a
for the redress of an existing
wrong.
(In
Killough’s Estate,
re
It is conceded that “Prior to there was no under the law of this state *6 personal injuries.” survival of actions recover for feasor, accident here occurred 1947 and the tort Steen, Emerald died to the commencement of this action in It is 1948. therefore clear stated that views majority supra, of this in Hunt v. Authier, court Smith, supra, only justification constitute the holding that a cause of action is stated in count either plaintiff’s complaint. opinion I am of the above- they mentioned cases were decided incorrectly and that should My be overruled. views length were forth set at some dissenting opinion in Authier, supra. Sunt v. would serve no purpose repeat useful them here or to discuss the effect of the 1949 amendment to section Code, the Probate which meaning clarified the of that section if clarification was needed.
I judgment. would affirm the
Edmonds, J., and Schauer, J., concurred.