150 P. 73 | Cal. Ct. App. | 1915
As a result of a collision between two automobiles, one of which was owned by Joseph McManus and the other by plaintiff, that of the latter was badly broken and injured. Plaintiff, alleging that the injuries to his car were caused by the negligence of McManus, brought this action to recover damages therefor. Pending suit defendant McManus died, and upon motion of plaintiff, made under section
Judgment went for plaintiff, from which, and an order denying their motion for a new trial, the substituted defendants prosecute this appeal.
In addition to their answer denying the material allegations of the complaint, defendants filed a counterclaim alleging that in said collision and by reason of the negligence of plaintiff in operating his car he caused it to collide with the automobile of Joseph McManus, by reason whereof it was broken and injured and for which they asked judgment against plaintiff for the damages so alleged to have been sustained.
Appellants insist that upon the death of defendants' testator the action abated, and therefore the court should have granted a motion to that effect made by them. It may be conceded that such was the rule at common law. This rule, however, we think has been modified by section 1584 of the Code of Civil Procedure, which provides that, "Any person . . . may maintain an action against the executor or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, . . ." Appellants interpret this statute to apply alone to cases where the deceased has, in his lifetime, destroyed goods or chattels of which he was in possession. To so construe the section would, in our opinion, deprive it of the meaning intended by *416
the legislature in enacting it. Each of the words, "wasted, destroyed, taken, or carried away," must not only be given some effect, but should be construed in accordance with the plain import of the language used. The chattels might be taken, carried away, or converted, without being "destroyed," and the converse is likewise true. We think it was the intention of the legislature in adopting the provision to modify the well known common-law rule to the extent that where a deceased person had in his lifetime wrongfully destroyed personal property of another to his damage, such person should have a right of action against the personal representatives of such wrongdoer for the recovery of damages sustained by reason of the wrongful act. It is immaterial that deceased was not benefited by the act, as was the case in Fox v. Hale Norcross S. M. Co.,
Basing their contention upon the fact, as found by the court, that plaintiff was operating his car in violation of subdivision 2, section 3, of Act 2331 (1909 Deering's Edition), General Laws, defendants insist that plaintiff's right to recover is barred by his own negligence. While the failure of a person to perform a duty imposed upon him by statute is sufficient evidence of negligence on his part (Driscoll v. Market St. etc. Ry. Co.,
Error is predicated upon the fact that the court permitted plaintiff to testify to the matters of fact occurring before the death of defendants' testator and upon which the action was based. Section 1880 of the Code of Civil Procedure, provides: "The following persons cannot be witnesses: . . . 3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim, or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person." Respondent insists that the ruling cannot be reviewed on this appeal for the reason that the record is insufficient to entitle appellants to a consideration of the point made. It is true that the bill of exceptions does not purport to set out all the evidence in the case. It does, however, clearly show that when the case was called for trial plaintiff was sworn in his own behalf and after stating his name and place of residence, proceeded to testify further, when defendants interposed their objections to his testifying as to how the collision occurred; that the objection was overruled, and that "thereafter the plaintiff, John W. George, was allowed by the court, over the objection of defendants, to testify as to all the facts of the collision between his automobile and that of the defendant, Joseph McManus, said plaintiff John W. George being the chief witness on his own behalf. Mrs. Lillian McCambridge also testified to the same effect and to the same facts, being substantially the facts set out in the complaint herein, which testimony was controverted by Agnes McManus, one of the witnesses for the defendants." The order of the court denying defendants' motion for a new trial was based upon this record, and if plaintiff's testimony was erroneously received, it follows that the testimony of Mrs. McCambridge in support of the allegations of the complaint was controverted by defendants' witness Agnes McManus. The burden of proof being upon plaintiff, it cannot be said that had the testimony of plaintiff not been received the conclusion of the court would have been in favor of plaintiff. That the cause of action constituted "a claim or demand" against the estate of Joseph McManus, deceased, in our opinion, admits of no controversy. The judgment rendered was that it be paid, in *418
course of administration, out of the estate. Had his death occurred before the commencement of the action, clearly, under section
Respondent insists, however, that the statute does not apply to a case where the action is brought by the personalrepresentatives of a deceased person to recover upon facts which occurred prior to the death of the testator, and that, inasmuch as defendants filed a counterclaim asking for affirmative action, such fact rendered the testimony of plaintiff competent. In Sedgwick v. Sedgwick,
The judgment and order are, therefore, reversed.
Conrey, P. J., and James, J., concurred.
