Hunt v. Authier

169 P.2d 913, 28 Cal. 2d 288, 171 A.L.R. 1379, 1946 Cal. LEXIS 211

Opinions

SHENK, J.

This is an appeal by the plaintiffs from a judgment dismissing their action after the defendant’s demurrer thereto had been sustained (Code Civ. Proe., § 581, subd. 3). The plaintiffs stood upon their complaint as stating a cause of action. The complaint alleges the following facts:

In December, 1943, Ephrem Mounsey killed Dr. Verne C. Hunt by deliberately shooting him with a revolver. Mounsey thereafter took his own life. Surviving Dr. Hunt were the plaintiffs, who are his widow and three minor children. They filed a claim against Mounsey’s estate for $150,000 for waste and destruction of their property, property rights and estate. The claim was rejected, and the present action was filed on the claim and for the sum of $150,000 alleged to be the pecuniary loss of and damage to the property, property rights and estate of the plaintiffs.

This action was not brought under the wrongful death statute (Code Civ. Proe., § 377), for the obvious reason that the wrongdoer was dead at the time the action was commenced. That section of the code provides for an action by the heirs and representatives of one killed by the wrongful act or neglect of another “for damages against the person causing the death.” Such an action, in the absence of statutory provision for its survival, has been held to abate upon the death of the tort feasor. (Clark v. Goodwin, 170 Cal. 527 [150 P. 357, L.R.A. 1916A 1142]; Singley v. Bigelow, 108 Cal.App. 436 [291 P. 899]. See, also, Severns v. California Highway Indemnity Exch., 100 Cal.App. 384 [280 P. 213].) Upon the death of Dr. Hunt a cause of action for wrongful death arose on behalf of the plaintiffs under section 377 and continued to exist until the tort feasor’s death.

The plaintiffs rely on section 574 of the Probate Code to effect a survival of that cause of action, at least in part. The section reads as follows: “Executors and administrators may maintain an action against any person who has wasted, destroyed, taken, or carried away, or converted to his own use, the property of their testator or intestate, in his lifetime, or committed any trespass on the real property of the decedent in his lifetime; and any person, or the personal representative of 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 property of any such person or committed any trespass on the real property of such person.” That section assumes, for the purpose of its effective operation, the existence of a cause of action against the tort feasor during his' lifetime on behalf of any person authorized by law then to sue him. It is contended that this is a survival statute in that it prevents the abatement, because of the death of the wrongdoer, of a cause of action which arose against him “in his lifetime,” and that to the extent that the detriment suffered represents a loss of an interest in property there was no abatement of the cause of action. The question is then presented whether any of the injury suffered by the plaintiffs because of the tortious killing of their decedent is an injury to property within the meaning of that section.

At common law the maxim, Actio personalis moritur cum persona, persisted to effect the abatement of all actions and rights of action in trespass. All actions or causes ex delicto died with the person by whom or to whom the wrong was done, with the possible exception of the survival of the injured person’s estate in cases of asportation of and damage to chattels (4 Edw. III, e. 7, 1330; 25 Edw. III, c. 5, 1351), and against the tortfeasor’s estate for wrongs whereby the latter was benefited. This was apparently the state of the law until 1833 (see 29 Columb.L.Rev. 239 et seq.), when by the statute of 3 and 4 Will. IV, c. 42, causes of action for injuries to real estate survived to the personal representative of the deceased owner, and causes for injuries to real and personal property survived against the representatives of the deceased tort feasor. So that what remained of the substance of the common law rule was the nonsurvivability of causes of action for damages to the person as distinguished from damages to property. In 1846 by statute 9 and 10 Viet., c. 93, commonly known as Lord Campbell’s Act, recovery was allowed to the heirs or representatives of a person killed by the wrongful act of another. Death statutes have been enacted by Legislatures of all the states, but in the absence of express provision causes of action thereunder generally have been held not to survive against the estate of the tort feasor.

The common law rule that tort actions did not survive has been looked upon with disfavor by the courts. Before the enactment of survival legislation, exceptions were created by judicial decision. (1 Am.Jur. 68.) As time went on legislation was enacted expressly providing for survival in specified cases, such as personal injury cases, and the common law rule has thereby been greatly modified. (1 Am.Jur. 73 et seq.) Some of the states have provided for the survival of all causes of action. More than half have provided for the survival of personal injury actions, some with the exception of such cases as seduction and breach of promise to marry. In others certain causes for injuries to personal relations as distinguished from injuries to the person have been entirely abolished by statute. (1 Am.Jur. 75 et seq.; Prosser on Torts, p. 953; see Civ. Code, § 43.5, abolishing actions for alienation of affection, criminal conversation, seduction of a person over the age of legal consent, breach of promise, and arrest when warrant is regular on its face.)

Thus the legislative tendency may be said to enlarge rather than to restrict the causes of rights of action which will survive. (See 18 Cal.L.Rev. 44.)

We are not aided in the solution of the problem by numerous cases similar to Clark v. Goodwin (1915), supra (170 Cal. 527), holding that causes of action based on death alone do not survive against the tort feasor’s estate. The courts in Devine v. Healy, 241 Ill. 34 [89 N.E. 251]; Gemmill v. Smith, 274 Ill. 87 [113 N.E. 27]; Hackensack Trust Co. v. Vanden Berg, 88 N.J.L. 518 [97 A. 148]; Levin v. Muser, 107 Neb. 230 [185 N.W. 431]; Anderson v. Wirkman, 67 Mont. 176 [215 ]; Morehead v. Bittner, 106 Ky. 523 [50 S.W. 857]; Putnam, v. Savage, 244 Mass. 83 [138 N.E. 808]; and Tonkins v. Cooper, 187 N.C. 570 [122 S.E. 294], have broadly construed statutes, some of them death statutes modeled on Lord Campbell’s Act, to include the survival of causes against the estates of tort feasors on the theory that the Legislature intended compensation whether or not the tort feasor survived. In other jurisdictions the courts have construed their statutes to exclude survival against the estates of tort feasors. (See Hegerich v. Keddie, 99 N.Y. 258 [1 N.E. 787, 52 Am.Rep. 25]; Davis v. Nichols, 54 Ark. 358 [15 S.W. 880]; Hamilton v. Jones, 125 Ind. 176 [25 N.E. 192]; Moe v. Smiley, 125 Pa. 136 [17 A. 228, 3 L.R.A. 341]; Russell v. Sunbury, 37 Ohio St. 372 [41 Am.Rep. 523] ; Heil v. Rule, 327 Mo. 84 [34 S.W.2d 90].) In at least eight jurisdictions survival against the tort feasor’s estate in death cases is expressly provided for by statute. (See, also, collection of statutes and cases in 1 Chicago L.Rev. 102; 29 Mich.L.Rev. 969; 48 Harv.L.Rev. 1008.)

The portion of section 574 of the Probate Code pertinent to this case was adopted from section 1584 of the Code of Civil Procedure which prior to 1931 read as follows: “Any person or his personal representative 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, or committed any trespass on the real estate of such person.” In 1931 bills were introduced in the Legislature looking to the enactment of provisions for the survival of personal injury rights of action, but they failed of passage. (See 19 Cal.L.Rev. 289 et seq.) However, the Legislature in that year modified the rule laid down in section 1584 by substituting the word “property” for the words “goods and chattels” and reenacting the section in section 574 of the Probate Code.

The statute does not use express words of “survival.” Nevertheless the section affords the right to maintain actions after the death of those who could have been plaintiffs or defendants if they had lived, in eases of injury to property, and to that extent has created a departure from the common law rule that actions ex delicto do not survive. The fact that the complaint states facts which would have constituted a cause of action against the tort feasor in his lifetime does not foreclose the maintenance of the same or a similar cause of action to the extent authorized by section 574.

In Hegerich v. Keddie, supra (1885, 99 N.Y. 258), it was considered that provision for the survival of actions to recover for damage done to property rights or interests did not include survival of an action against the estate of the wrongdoer for damages for negligent death. The decision was based on a provision of the survival statute which expressly excepted actions for injuries to the plaintiff or the plaintiff’s decedent. The case recognized, however, that damages to property rights and interest must be something in addition to damage caused by personal suffering. The view was expressed that neither a husband nor a wife has such an interest in the life of the spouse as would subject a person through whose act it was taken to liability for injury to property rights. The court said that assignability and survivability were convertible terms and furnished a test to determine what injuries or property rights were meant by the statute. The court also said that assuming the cause of action to be a property right, it was based upon a tort and must be governed by the rule in such causes on the theory that if such a cause of action abates, the character of the damages cannot save it. It was also observed that the complaint there involved attempted to state a cause of action arising out of death alone, and suggested no injury to property rights. The Hegerich case overruled an earlier decision (Yertore v. Wiswall, 16 How.Pr. (N.Y.) 8). In 1935 the New York Legislature provided for survival to and against representatives in personal' injury and death cases. (L. 1935, c. 795.) The principle of the Hegerich case (that since injuries flowing from the wrong which caused the death of the plaintiff’s decedent include injuries to the person, the action can be no more than an action to recover damages for personal injuries irrespective of how property rights are affected) is not controlling under our statute. (Cf., also, Demczuk v. Jenifer, 138 Md. 488 [114 A. 471].) Nor may assign-ability be the test of the plaintiff’s right of action against the tort feasor’s estate. It is not an exclusive test under a statute which precludes abatement of the liability of the tort feasor for property damage. In the latter class of eases a test which has been applied is whether the injury affected property rights, or affected the person only. (See Sullivan v. Associated Billposters & Distributors, 6 F.2d 1000 [42 A.L.R.. 503]; Trust Co. of Norfolk v. Fletcher, 152 Va. 868 [148 S.E. 785, 73 A.L.R. 1111].) Such a test was employed in Vragnizan v. Savings Union Bank & T. Co., 31 Cal.App. 709 [161 P. 507]. Prosser (Torts, p. 954) states the modern trend to he ‘ ‘ definitely toward the view that the tort causes of action and liabilities are as fairly a part of the estate of either plaintiff or defendant as contract debts,” and that there should be no more difficulty in proving or defending the claim than in any case where personal contract rights are deemed to survive. (See, also, 29 Mich.L.Rev. 969; 44 Harv.L.Rev. 980; 48 Harv. L.Rev. 1008; 18 Cal.L.Rev., supra, p. 44; 24 Cal.L.Rev. 716.)

A trend toward a liberal interpretation of a statute expressly providing for survival was noted in Bullowa v. Gladding (1917), 40 R.I.147 [100 A. 249], where a cause of action founded on deceitful representations inducing the plaintiff’s purchase of worthless stock was held to survive the death of the defendant under a statute providing for survival of causes for damages to personal estate. It has also been held that the wrongs contemplated by such statutes were not limited to wrongs to specific articles of property, but extended to wrongs by which a personal estate was injured or diminished in value. (Baker v. Crandall, 78 Mo. 584 [47 Am.Rep. 126]; see, also, In re Grainger, 121 Neb. 338 [237 N.W. 153, 78 A.L.R. 597], and annotation at page 600.) Injuries which lessen the estate, although there is no injury to tangible property, survive in many jurisdictions. (See article where collection of statutes and decisions is set forth, in 29 Mich.L.Rev., p. 969 et seq.) In Vragnizan v. Savings Union Bank & T. Co., supra (1916, 31 Cal.App. 709), there was no injury to tangible property. The husband’s misrepresentation of the community assets by which a property settlement was induced, and a final decree of divorce obtained, was held to be a legal injury to the wife’s rights of property which survived the death of the husband.

In Sullivan v. Associated Billposters & Distributors, supra (6 F.2d 1000), a cause of action for damages to business resulting from a conspiracy in violation of the Sherman AntiTrust Act and involving injuries to intangible items of loss of trade and future profits, was held to survive the death of the tort feasor. A cause of action to rescind a conveyance (Lufkin v. Cutting, 225 Mass. 599 [114 N.E. 822]), and a cause to rescind a contract obtained by fraud (Purcell v. Purcell, 233 Mass. 62 [123 N.E. 394]), involving no injury to tangible property, were held to survive. In Evans v. Gibson (1934), 220 Cal. 476 [31 P.2d 389], it was held that a cause of action for damages for deceit survived against the tort feasor’s estate. The court expressly distinguished the items of damage to property interest from those which were exemplary or punitive, holding that the latter did not survive since the purpose thereof was to punish the tort feasor and deter him from the commission of like wrongs in the future, and the reason therefor ceased to exist upon his death. There should be no distinction between injuries to property in cases of fraud and deceit, which are tortious acts, and injuries to property rights in other cases of tortious acts such as wrongful death. (See 29 Mich.L.Rev., supra, at p. 986.)

The change of the term “goods and chattels” to the all-inclusive word “property” in section 574 requires that the intent of the Legislature be given its proper effect by the recognition of every property right or interest as “property” within the meaning of the section, and that the waste or destruction thereof need not have been the result of a direct injury. That change clearly indicates an intent to place no restrictions or limitations on the types of property for the injury to which compensation may be recovered from the estate of the wrongdoer, and to make no distinction as to the method by which such destruction or injury is effected.

The definitions of the word “property” as “real and personal,” and of the words “personal property,” as “money, goods, chattels, things in action, and evidences of debt” (Civ. Code, § 14), do not preclude an appropriate construction of the word “property” as used in section 574. In Ponsonby v. Sacramento Suburban Fruit Lands Co., 210 Cal. 229, at p. 232 [291 P. 167], this court said that property is a generic term, “and its meaning in any case must be determined by ascertaining the sense in which it was used. When unqualified the term is sufficiently comprehensive to include every species of estate, both real and personal, whether choate or inchoate, . . . whether corporeal or incorporeal. . . . The word is sometimes used in the sense of ‘estate’. ...” The court held that damage resulting from fraud and deceit was an injury to property, considered in the sense of a lessening or diminution of the plaintiff’s estate. In Leavitt v. Gibson, 3 Cal.2d 90, at p. 102 [43 P.2d 1091], the court was careful to distinguish actions strictly ex delicto, such as actions to recover damages for personal injuries. The action in that case was for damages for fraud and deceit, and although there was no direct damage to tangible property this court expressed the opinion that the compensatory portion of the damages to the plaintiff’s “estate,” as distinguished from those merely punitive, would be recoverable against a deceased tort feasor’s estate. (Cf. Evans v. Gibson, supra, 220 Cal. 476. See 24 Cal.L.Rev. 479.)

In Scott v. McPheeters, 33 Cal.App.2d 629 [92 P.2d 678, 93 P.2d 562], the court quoted with approval from 50 Corpus Juris, page 736, section 7, stating that “ ‘ Generally, the subjects of property comprise all valuable rights or interests protected by law. ... In modern legal systems, property includes practically all valuable rights. The term is indicative and descriptive of every possible interest which a person can have, extends to every species of valuable right, or interest, and comprises a vast variety of rights. The right to be protected in a person’s privileges belonging to him as an individual or secured to him as a member of the commonwealth is property, as is any valuable interest in or to any object of value that a person may lawfully acquire or hold.’ ”

Injuries suffered by the plaintiffs by the lessening of their estate and the invasion and deprivation of their pecuniary interest and right to future support from their decedent by the commission of the wrongful act is as much a destruction of or injury to property as was involved in the foregoing cases; and the tort likewise in this ease should be deemed to be an invasion of their property rights within the meaning of the present statute. Where the courts have not held such losses to be injuries to property, it has been due to a reluctance to depart from ancient judicial declarations or to the absence of a statute designed to modify the old rule of nonsurvival. The Legislature has definitely spoken by the amendment of our statute so as to enlarge the class of property rights and interests which shall receive protection in the event of the death of the wrongdoer. Where the Legislature has so provided the courts should not countenance a tortious deprivation of property without redress.

It follows that wherever a plaintiff has sustained an injury to his “estate,” whether in being or expectant, as distinguished from an injury to his person, such injury is an injury to “property ” within the meaning of that word in the present statute. The plaintiffs have therefore stated a cause of action for recovery from the defendants of the material losses sustained, including the present value of future support from their decedent considering their respective normal life expectancies, but exclusive of any damages for such items as loss of consortium, comfort or society of the decedent.

The judgment is reversed.

Gibson, C. J., Carter, J., and Traynor, J., concurred.