CORT v. STEEN

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District Court of Appeal, Second District, Division 1, California.

CORT v. STEEN.

Civ. 16693.

Decided: February 02, 1950

Rodney F. Williams, Los Angeles, for appellant. Parker, Stanbury & Reese, Richard E. Reese, Los Angeles, for respondent.

This is an appeal from the judgment following the sustaining of a demurrer without leave to amend.

As recited in appellant's brief, ‘Plaintiff brought this action seeking to recover damages for injuries sustained in an automobile collision alleged to have been due to carelessness and negligence of Emerald J. Steen. The latter having died subsequent to the accident, the action was brought against the administrator of the estate of said Emerald J. Steen.

‘The first cause of action of plaintiff's complaint alleges that as a direct and proximate result of the carelessness and negligence of Emerald J. Steen, plaintiff sustained, and will continue to suffer, severe injuries to his damage in the sum of $24,400.00. The second cause of action of plaintiff's complaint alleges that as a direct and proximate result of the carelessness and negligence of Steen, plaintiff suffered and sustained great pecuniary loss of and damage to the earnings, profits, property, property rights and estate of plaintiff which were wasted to his damage in the sum of $25,000.00, and that plaintiff will in the future suffer similar damage and loss to his earnings, profits property, property rights and estate, and that plaintiff's property, property rights and estate have been wasted and destroyed in the further sum of $600.00, which was paid out as medical, hospital and similar expense. Both causes further alleged the appointment and qualification of the administrator of Steen's estate, the filing of plaintiff's claim against the estate and the rejection thereof. A demurrer was filed by respondent on the general ground that the complaint and each cause of action thereof fails to state sufficient facts to constitute a cause of action, and on several special grounds. Said demurrer was sustained without leave to amend and judgment for defendant was entered in accordance therewith.’ According to appellant, the question on appeal is, ‘Did the causes of action alleged in plaintiff's complaint abate with the death of the negligent tort-feasor?’

Appellant relies on Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 171 A.L.R. 1379, and Moffat v. Smith, Cal.App., 197 P.2d 798; also Nash v. Wright, 82 Cal.App.2d 475, 186 P.2d 691.

Respondent, on the other hand, contends that the question involved is, ‘Did the Legislature, by its 1949 change in the language of Section 574 of the Probate Code, destroy the basis for decision in Hunt v. Authier and pursuant decisions?’ In this connection it is argued by respondent that ‘Hunt v. Authier, 28 Cal.2d 288 [169 P.2d 913, 171 A.L.R. 1379], decided in 1946, reversed previous concepts long prevailing in this state with respect to the survivorship of causes of action in persona. In that case it was held that a cause of action by the heirs of a deceased for the lessening of his estate and for deprivation of the right to future support, brought against the estate of the deceased tort feasor, was a cause of action for injury to property and survived the death of the tort feasor. The decision there was the father of Moffat v. Smith, [33 Cal.2d 905, 206 P.2d 353] and Nash v. Wright, 82 Cal.App.2d 475 [186 P.2d 691]. Moffat v. Smith appears to be on all fours with the case at bar since in that case the injured plaintiff brought the same type of action against the estate of the deceased tort feasor as in the present case.

‘Hunt v. Authier was decided by a sharply divided court (four to three), and contains a thoroughly analytical dissenting opinion by Justice Spence. The entire basis for the majority opinion was a construction of Section 574 of the Probate Code, the conclusion being that the cause of action brought by the heirs was one for damage to ‘property’ within the meaning of the statute. This, we urge, was a strained construction and, as Justice Spence points out, amounted to judicial legislation. There was no basis for the decision other than the majority's interpretation of the statute involved; therefore if the decision is a demonstrable misinterpretation of the statute, and Hunt v. Authier and the decisions descended from it can no longer be said to be the law of this state.

‘The 1949 Legislature made a significant change in Section 574 by adding the following language: ‘This section shall not apply to an action founded upon a wrong resulting in physical injury or death of any person.’

‘It is our position that this language was intended by the Legislature not as a change in the rights conferred by the section but as a clarification of its meaning. It it is a clarification of the meaning of Section 574, the holding in Hunt v. Authier must fall as it would otherwise rest upon an untenable hypothesis.

‘It is first to be noted that under long established law it is presumed that the Legislature, in dealing with an existing statute, acted with knowledge of the pertinent judicial decisions.’

It should be noted at the outset that Section 574 of the Probate Code relates to procedure only; it is not substantive law, a point which, apparently, was not considered in the Authier and Smith cases. Section 574 of the Probate Code authorizes ‘Executors and administrators' to bring the ‘action’ referred to in the section, or ‘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 opinion in the Hunt v. Authier case was filed June 7, 1946. That this opinion, as recited in respondent's brief, ‘reversed previous concepts long prevailing in this state with respect to the survivorship of causes of action in persona’, there can be no question. By the court's interpretation of Section 574 of the Probate Code, which as noted above, is but a procedural and remedial provision, a new right and liability was created which theretofore had not existed. And, it is important to note that the remedy was without limitation. It established such a right of action ‘founded upon a wrong resulting in physical injury or death of any person’, within the meaning of Section 574 of the Probate Code as that section read at that time. And the opinion in the Hunt v. Authier case so construing said section was then the law of the case. The fact that the opinion was by a divided court or that a difference of opinion may have existed as to the merit of the decision, is beside the issue; it became and was the law as to the meaning and intent of Section 574. But in 1949, Section 574 of the Probate Code was amended by the addition of a single sentence which, as noted above, reads as follows: ‘This section shall not apply to an action founded upon a wrong resulting in physical injury or death to any person’. Thus by all of the applicable rules of construction the law as established by the opinion in the Hunt v. Authier case was ‘repealed’, for, as conceded by appellant, ‘the legislature would, of course, have a right, by amendment, to change the terms of a statute as interpreted by the Supreme Court. It seems clear, therefore, that the amendment to Section 574 of the Probate Code was an enactment in accordance with the general rule that an amendment demonstrates the legislative intent to change the law rather than clarify it, Loew's, Inc., v. Byram, 11 Cal.2d 746, 750 [82 P.2d 1].’ Appellant's contention therefore that the Hunt v. Authier opinion is authority for the within action, is without merit. Section 574 of the Probate Code being merely procedural and remedial, the 1949 amendment is retrospective. 16 Corpus Juris Secundum, Constitutional Law, § 414, page 856 et seq.; Moss v. Smith, 171 Cal. 777, 155 P. 90; Berg v. Traeger, 210 Cal. 323, 292 P. 495.

The appellant's opening brief and the respondent's brief is confined to a consideration of Section 574 of the Probate Code. Appellant's reply brief adds the argument that, ‘the legislature by Statutes 1949, chapter 1380, not only amended Section 574 of the Probate Code, but at the same time, and as a part of the same statute added a new section to the Civil Code, Section 956, which now provides as follows: ‘A thing in action arising out of a wrong which results in physical injury to the person or out of a statute imposing liability for such injury shall not abate by reason of the death of the wrongdoer or any other person liable for damages for such injury, nor by reason of the death of the person injured or of any other person who owns any such thing in action. * * *’

‘The only conclusion that can be drawn is that the legislature removed from the Probate Code the right of action formerly allowed by Section 574 and placed such right of action with certain changes and enlargements in its scope within the provisions of the Civil Code.’ And, ‘that the cause of action herein which respondents concede is on all fours with the case of Moffat v. Smith * * * has not fallen or ceased to exist.’

From an examination of the amendment to Section 574 and the provisions of Section 956 it is clearly evident that the legislature intended to eliminate entirely the remedy established by the Hunt v. Authier decision but, at the same time to establish a somewhat similar right and liability within certain limitations. Section 956 of the Civil Code which was alo adopted in 1949 accomplishes this purpose. The incident upon which plaintiff's cause of action is based, however, occurred in 1947 and, inasmuch as the provisions of Section 956 is substantative law as distinguished from mere procedure, Section 956 is not retrospective, and therefore cannot provide a basis for plaintiff's cause of action.

For the foregoing reasons, the judgment appealed from is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.