MOFFAT v. SMITH

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District Court of Appeal, Third District, California.

MOFFAT v. SMITH.

Civ. 7506.

Decided: October 04, 1948

David S. Folsom, of Corcoran, for appellant. Chester O. Hansen and John Said, both of Fresno, for respondent.

Plaintiff brought this action seeking the recovery of damages for injuries sustained in an automobile collision alleged to have been due to carelessness and negligence on the part of one David D. Copenhaver. The latter having died subsequent to the accident, the action was brought against the executrix of his last will.

Plaintiff's complaint alleges that because of the negligence of Copenhaver plaintiff sustained injuries which will prevent him from carrying on his occupation as a chemical engineer, and from advancing in his profession as such; that he would otherwise be capable of earning large amounts of money, and that, because of his injuries, he has been deprived, and will be deprived in the future, of great gains and profits which he might otherwise have made, to his damage in the sum of $50,000. It further alleges that plaintiff filed a claim against Copenhaver's estate which was rejected. A copy of said claim is made a part of the complaint. Therein $50,000 is claimed ‘For loss of future potential earnings as a result of injuries received in an automobile accident * * * said injuries having been caused by the carelessness and neglegence’ of the deceased. A demurrer was filed by respondent on general grounds and on the ground that the alleged cause of action abated with the death of Copenhaver. Said demurrer was sustained without leave to amend, the action was dismissed, and this appeal followed.

The only question presented here is did plaintiff's cause of action for loss of future potential earnings abate with the death of the negligent tort-feasor.

Section 574 of the Probate Code, as enacted in 1931, provides: ‘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.

The foregoing section was considered and applied in Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 171 A.L.R. 1379, and appellant premises his right to recover upon that decision. In that case one Mounsey killed a Dr. Hunt, and then took his own life. Hunt's surviving widow and children filed a claim against the estate of Mounsey for waste and destruction of their property, their property rights and estate. The court said that the legislative tendency may be said to enlarge rather than to restrict the causes of rights of action which will survive; and in construing section 574, supra, said, 28 Cal.2d at page 292, 169 P.2d at page 916: ‘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 cases 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.'

It also stated, 28 Cal.2d at pages 296, 297, 169 P.2d at page 918:

‘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 or injury to property as was involved in the foregoing cases; and the tort likewise in this case 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.'

And while in that case it was the right of the survivors of a decedent whose life had been taken by the action of the tort-feasor that was involved, it would be an anomaly to hold that their right to future support from their decedent constituted property within the provisions of section 574, supra, but that the right of the surviving victim of the tort to his own future support is not. And when the court in the Hunt case said that when a plaintiff has sustained an injury to his ‘estate,’ whether in being or expectant, such injury is an injury to property, it laid down a rule which governs in the case before us.

Also see Nash v. Wright, 82 Cal.App.2d 475, 186 P.2d 691 (hearing in Supreme Court denied).

The judgment is reversed with directions to overrule the demurrer.

I concur for the sole reason that I assume this court is bound by the majority decision in Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 171 A.L.R. 1379. I am in accord with the minority opinion in that case which suggests that the court has invaded the province of the legislature in virtually abolishing the ancient and uniform general rule of abatement of a cause of action for tort by the death of the wrongdoer. That rule, in the absence of a statute to the contrary, has been the established rule at common law and in the United States for many years. The majority decision determines that the adoption of Section 574 of the Probate Code in 1931 changed that rule to authorize a suit for damages growing out of tort, in spite of the death of the tortfeasor, if it affects the estate or property of the plaintiff or his heirs, whether the property rights are ‘in being or expectant, as distinguished from an injury to his person.’ In the Hunt case the complaint alleged ‘pecuniary loss of and damage to the property, property rights and estate of the plaintiffs.’ In the present case, which is a suit for damages for personal injuries received by plaintiff in an automobile collision, the tortfeasor having died before the action was commenced, it is merely alleged, on information and belief, that a permanent brain injury which resulted from the accident, prevented plaintiff from carrying on his employment as a chemical engineer and precluded him from earning ‘large amounts of money in his lifetime.’ No damage to tangible property in existence at the time of the tort is alleged. Merely intangible, uncertain, speculative and prospective diminution of earning capacity is alleged in this case. Clearly, this suit is an ordinary action for personal injuries sustained as a result of an automobile casualty. It was not a suit for damages to property under Section 574 of the Probate Code. But the judicial construction of that section by the majority decision in the Hunt case includes therein any injury or impairment to property whether it is tangible and in actual existence at the time of the tort, or merely ‘expectant.’ We are required to accept that construction as the law of this state, as this opinion properly holds.

The adoption of Section 574 in 1931 is merely the consolidation, reenactment or continuation of similar sections of the Code of Civil Procedure, which had been the law of this state for many years. The only material change was the substitution of the word ‘property’ for the former words ‘goods and chattels.’ That statute authorizes, as I think it always has, the maintenance of an action by the representatives of an estate against the estate of a deceased tortfeasor who, in his lifetime, committed trespass upon real property, or who ‘has wasted, destroyed, taken, or carried away, or converted to his own use,’ real or personal property. It seems to me that section clearly contemplates a remedy against a deceased tortfeasor for damage to tangible property in actual existence at the time of the wrongful acts complained of.

It seems clear to me that, by the substitution of the word ‘property’ for those of ‘goods and chattels', the legislature did not intend to abolish the general rule of abatement of a suit upon the death of the tort-feasor. The majority decision in the Hunt case states that for several recent sessions of the legislature bills have been repeatedly presented to that body to abolish that rule, and that each of them failed to pass. If the legislature had intended to abolish that rule of law it certainly would have adopted a bill which was presented for that purpose. The minority opinion therefore appropriately suggests that the decision in the Hunt case results in a judicial invasion of the legislative authority.

The case of Nash v. Wright, 82 Cal.App.2d 475, 186 P.2d 691, which is heretofore cited, appears to be inapplicable. That was a suit, under Section 377 of the Code of Civil Procedure for the wrongful death of plaintiff's intestate. The abatement of the cause on account of the death of the tortfeasor was not there involved. He was still alive. The authorities make a clear distinction between cases under statutes authorizing suits for wrongful death, and those which involve the doctrine of abatement at the death of the tortfeasor. In 4 Restatement of the Law of Torts, p. 530, section 900(a), it is said, ‘Where a statutory cause of action is created, as for wrongful death, the general survival statute may not apply to cause the action to survive the death of the tortfeasor.’

For the sole reason that I am persuaded this court is bound by the majority decision in the Hunt case, I am constrained to concur in this opinion.

ADAMS, Presiding Justice.

PEEK, J., concurs.

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