GRANT v. McAULIFFE

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District Court of Appeal, Third District, California.

GRANT v. McAULIFFE.

MANCHESTER v. McAULIFFE.

JENSEN v. McAULIFFE.*

Civ. 8153–8155.

Decided: April 13, 1953

Goldstein, Barceloux & Goldstein, Chico, for appellants. Honey & Mayall, Stockton, for respondent.

On December 17, 1949, appellant Jensen was driving west on U. S. Highway 66 and appellants Grant and Manchester were riding with him. W. W. Pullen was driving his automobile east on the same highway. At a point approximately 15 miles east of Flagstaff, Arizona, the Jensen and Pullen cars collided, due to the alleged negligence of Pullen.

Jensen's automobile was badly damaged and Jensen, Grant and Manchester suffered personal injuries. Pullen died on January 5, 1950, and Frank H. McAuliffe was appointed administrator of his estate by the Superior Court in Plumas County, California, which county was and had been the residence of Pullen, Jensen, Grant and Manchester. On December 14, 1950, Jensen, Grant and Manchester each filed an action for damages against the estate of Pullen, having previously presented their claims against Pullen to the administrator who rejected each of the claims.

In response to plaintiffs' complaints defendant filed a general demurrer and notice of motion to abate. After hearing the motion the court made an order abating the action in each case. Plaintiff in each case appealed from the said order and the three appeals have been consolidated as each is based upon the same grounds.

Appellants make a vigorous and able attack on the orders abating the actions. They contend that the trial court erred in that its conclusions were contrary to the following contentions:

‘1. The question of survivability is a procedural matter and should be governed by the law of the forum.

‘2. Regardless of the nature of the doctrine of survivability in other states, it is definitely a purely procedural matter in the State of Arizona, and therefore has no application to California actions.

‘3. Assuming the law of Arizona on the question of survival to be substantive, it will not be enforced in California where the Arizona rule is directly contrary to the public policy of the State of California.’

We shall first discuss the principal contention of appellants which is that survivability is a procedural or remedial matter and not a substantive right and therefore should be governed by the law of the forum.

It is the general rule, as stated by appellants, that matters of procedure are governed by the law of the forum. The rule is stated in 11 Am.Jur., sec. 14, p. 314 (cited by appellants), as follows:

‘* * * The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy. The Courts will assume that a case is to be governed by the laws of the forum unless it is expressly shown that a different law applies, and in case of doubt as to whether the lex loci or the lex fori should govern, the court will naturally prefer the laws of its own state or country.’

Also see Frederick Sage & Co. v. Alexander & Oviatt Corp., 138 Cal.App. 476, 32 P.2d 655.

Respondent does not dispute this general rule but contends that in the instant case it has been shown that a different law does apply. Respondent argues that the fundamental and general rule in the field of tort law is as stated in 11 Am.Jur., sec. 182, p. 490, as follows:

‘Where an action is brought in one jurisdiction for a tort committed in another, the general rule is that all matters relating to the right of action are governed by the lex loci delicti. That law determines whether a person has sustained a legal injury. The actionable quality or nature of acts causing death or bodily injuries as tortious is therefore to be determined by reference to the lex loci, rather than the lex fori. The law of the place of the wrong may defeat recovery because of the failure of the injured person to fulfil certain statutory conditions. Such law governs in the forum.

‘It is obvious under the foregoing rules that in order to maintain an action of tort founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foundation of the action must therefore be at least actionable by the law of the place in which it is done. Correspondingly, if no legally maintainable action is created by the place of the wrong, none exists elsewhere. The prosecution of transitory actions in a state or country other than that in which the cause of action arises is based on comity, so that, where under the lex loci no right of action exists, no action can be entertained by the courts of the forum, although a statute of the forum gives such a right of action. * * *’

In the case of Loranger v. Nadeau, 215 Cal. 362, at page 366, 10 P.2d 63, 65, 84 A.L.R. 1264, a case having to do with the application of the rule of lex loci delicti in a tort action, our Supreme Court said:

‘It is the settled law in the United States that an action in tort is governed by the law of the jurisdiction where the tort was committed, and, as it is a transitory action, it may be maintained in any jurisdiction where the defendant may be found. It is the general rule in tort actions that the court will, if it has jurisdiction of the necessary parties and can do substantial justice between them in accordance with its own forms of procedure, enforce the foreign law if it is not contrary to the public policy of the forum, to abstract justice, or pure morals, or injurious to the welfare of the people of the state of the forum. 12 Cor.Jur., p. 453. In Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 202, it was said: ‘The courts are not free to refuse to enfroce a foreign right at the pleasure of the judges, to suit the individual notion of expediency or fairness. They do not close their doors, unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.’ In Reynolds v. Day, 79 Wash. 499, 140 P. 681, 683, L.R.A.1916A, 432, it was said: ‘Under the rule of comity, rights which have accrued by the law of another state or nation are treated as valid everywhere. When the action is transitory and the jurisdiction of the parties can be obtained by service of process, the foreign law, if not contrary to the public policy of the state where the action is brought, nor contrary to abstract justice or pure morals nor calculated to injure the state or its citizens, will be recognized and enforced. This rule applies alike to actions ex contractu and actions ex delicto. In all such cases, the right to recover is governed by the lex loci and not by the lex fori.’'

See, also, Restatement of the Law, Conflict of Laws, sec. 390, pp. 478–479; 15 C.J.S., Conflict of Laws, § 12, p. 896.

It is a well-settled rule at common law that causes of action founded on tort abated with the death of the tort-feasor. This common-law rule has long been recognized and accepted in California, as stated in the case of Clark v. Goodwin, 170 Cal. 527, at page 529, 150 P. 357, at page 358, L.R.A.1916A, 1142, as follows:

‘The only question on this appeal is whether the cause of action so given survives the death of the person who wrongfully or negligently causes the death on account of which damages are claimed. Admittedly it does not survive the death of the wrongdoer if the well-settled common-law rule relative to abatement of a cause of action for damages for injuries to person on the death of the wrongdoer has not been changed by statute in this state. Our statutes provide that: ‘The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state.’ Pol.Code, § 4468. Nothing was more firmly settled at common law than the rule that such a cause of action, except under certain circumstances which do not exist here, does not survive the death of either the person to or by whom the wrong was done.'

In the absence of specific statutory enactment the common-law rule as to abatement of causes of action founded on tort still prevails. However, in a majority of jurisdictions, including California, legislation has been enacted expressly modifying the common-law rule. Since the enactment of Probate Code, section 574 in 1931, as amended in 1949, and the addition of section 956 to the Civil Code in 1949, a cause of action does not abate in California upon the death of a tort-feasor.

The common-law rule as to survival of tort actions prevails in Arizona, but section 21–534 of the Arizona Code provides:

‘An action to recover damages for injuries to the person, or death caused by the wrongful act, default or neglect of another, shall not abate by reason of the death of the defendant, and his personal representative may be substituted as defendant; if such action be against a receiver, assignee or trustee, and such receiver, assignee or trustee shall die, resign or be removed from office, his successor in office may be substituted as defendant. The action shall thereupon proceed to judgment as if the defendant had remained alive, or the original receiver, assignee or trustee had continued in office.’

This statute is the only statute enacted by the State of Arizona regarding death situations and in effect is a revival statute, providing only for the substitution of a personal representative of a deceased litigant who has died after a proceeding or action has been commenced. This Arizona statute has been expressly so construed in the case of McLellan v. Automobile Insurance Company of Hartford, Conn., 9 Cir., 80 F.2d 344, wherein the plaintiffs argued that the above-cited section of the Arizona Code was a survival statute. At page 350 of 80 F.2d, the court stated:

‘It is clear that in a case where the wrongdoer dies, section 3774 [21–534, Arizona Code] is designed to revive an ‘action’; i. e., a ‘proceeding’, which has theretofore been instituted to recover damages for death by wrongful act, even though the cause of action itself, if the proceeding had not been instituted before the death of the wrongdoer, would not have survived his death.'

This decision relied on the interpretation given the California revival statute, Code of Civil Procedure, section 385, in the case of Clark v. Goodwin, 170 Cal. 527, 150 P. 357.

The common-law rule as to the abatement of actions is still in effect in the State of Arizona and has been expressly held to be so in the case of McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573, at page 576, where the court in passing on the decision rendered in the McLellan case (above cited) stated:

‘We are of the opinion that the decision of that court was correct on the point referred to, and that under the law of Arizona when a tort-feasor dies before the commencement of an action, the cause of action does not survive his death, and a plea in abatement should be sustained if the fact appears on the face of the complaint, or a verdict should be directed in favor of defendant if it is first shown by the evidence.’

Turning to the contention of plaintiffs that survivability is a procedural or remedial right and not a substantive right, and therefore that it should be governed by the lex fori, we believe that our Supreme Court has determined this question adversely to plaintiffs' contention in the recent case of Cort v. Steen, 36 Cal.2d 437, at page 440, 224 P.2d 723, at page 725, where the court stated:

‘Prior to 1949 there was no provision under the law of this state for the survival of actions to recover for personal injuries. If the statutory provisions for survival affect only the remedy or procedure, the conclusion would follow that in the absence of an express provision the enactment applies as well where a party died prior to its effective date. San Bernardino County v. Industrial Acc. Comm., 217 Cal. 618, 628 et seq., 20 P.2d 673. That case also indicates when retrospective application express or implied will be invalid as an impairment of vested rights.’

Again quoting from the same case, at pages 441, 442 of 36 Cal.2d, at page 725 of 224 P.2d:

‘* * * In spite of the vagueness of its origin, the uncertainty of its meaning, and the criticism to which it has been subjected, the maxim actio personalis moritur cum persona has become firmly imbedded in the law. [Citations.] Courts have treated the phrase as referring not merely to the remedy, but to the right or cause of action itself. Thus ‘abatement’ as used in determining the effect of the non-survivability doctrine, did not have the same meaning as abatement of actions which could be revived for or against personal representatives. Under the doctrine the abatement of the action by the death of the injured person through the tort-feasor's act or otherwise, or by the death of the tort-feasor, was deemed to abate the wrong as well. For in legal concept death was considered not to be an injury. [Citations.] Recovery was solely punitive, and the deceased's representatives had not received or committed the wrong in their personal capacities. [Citation.] Since death ‘discharged’, ‘terminated’ [citation], or ‘dissolved’ the cause [citations], a survival statute was deemed to create a right or cause of action, rather than to continue an existing right, or to revive or extend a remedy theretofore accrued for the redress of an existing wrong.' [Citations.]

In 1 Am.Jur., sec. 157, page 103, it is stated:

‘The general rule is that the survival of a cause of action is governd by the law of the state where the cause arose. Some courts apply this rule even though there is no similar statute in the state of the forum, but other courts have limited their decisions to cases in which there is a similar statute in the forum. This is regarded as a matter pertaining to the substantive right, rather than to the remedy. This principle finds application in causes of action for personal injuries. The survival of such a cause is governed by the law of the place where the injury occurred and the cause of action arose.

‘Many of the courts limit this doctrine to cases in which no action has been brought until after the death of the injured person or of the wrongdoer. The fact that the action is brought in the state of the domicile of the wrongdoer and that by the law of that state the cause of action survives his death is not effective to make the cause of action survive where such action is brought after his death.’ Ormsby v. Chase, 290 U.S. 387, 54 S.Ct. 211, 78 L.Ed. 378.

We believe that the basic weakness of the argument of plaintiffs upon this point is that they have failed to properly evaluate the distinction between the survival and revival of actions. Plaintiffs have cited a number of cases in support of their contention that survivability is procedural but an examination of these cases, with the exception of one or two extreme minority views, discloses that they all deal with revival statutes, and that the court in each instance applied its own law regardless of the law of locus delicti, in accordance with the general rule hereinbefore stated. ‘Survival’ has to do with the accrual of a cause of action and its abatement at the death of one of the parties. ‘Revival’ has to do with a cause of action pending at the death of one of the parties. The distinction between ‘survival’ and ‘revival’ is clearly pointed out in exhaustive annotations in 87 A.L.R. 852 and 92 A.L.R. 1502. Survival of actions is by the overwhelming weight of authority held to be a matter of ‘substantive law’ and the lex loci delicti applies, while ‘revival’ is considered a matter of ‘procedure or remedy’ and the lex fori applies.

Since in the instant cases the actions were not instituted before the death of the tort-feasor, and the State of Arizona has no survival statute, but applies the common-law rule that an action for personal injuries against a tort-feasor abates at his death, McClure v. Johnson, 69 P.2d 573; McLellan v. Automobile Ins. Co., 80 F.2d 344, supra, we must, in view of the authorities cited, hold that upon the death of the tort-feasor, before the filing of the actions, the plaintiffs' right of action abated.

The final contention of plaintiffs is that ‘assuming the law of the state of Arizona on the question of survival to be substantive, it will not be enforced in California where the rule is directly contrary to the public policy of the State of California.’ The authorities cited by plaintiffs on this point all appear to involve situations where the locus delicti has a ‘survival’ statute but the forum does not. In such cases relief has been denied in the forum because to grant it would contravene strong public policy therein. However, no case has been cited where a cause of action for tort could be enforced in the forum where such cause of action could not be enforced in the courts of the state where the wrong was committed and the cause of action arose. The rule is well expressed in Restatement of the Law, Conflict of Laws, section 390, as follows:

‘Comment:

‘(a) A claim does not survive the death of a party to it unless it is made by a statute to survive. No recovery can be had for damages after the death of the injured party or of the tort-feasor unless such be the law of the place of wrong. By the early common law no claim for a tort survived. By a very early English statute, claims for breach of a contractual obligation survived. The category of claims surviving the death of the person injured has been enlarged by modern legislation to include many tort claims, but there are still states by the law of which a claim for damages for certain personal injuries dies with the injured person. By modern legislation most claims survive against the representative of a deceased wrongdoer.

‘(b) If a claim for damages for injury survives the death of the injured person or the wrongdoer, as the case may be, by the law of the place of wrong, recovery may be had upon it by or against the representative of the decedent, provided that law of the state of forum permits the representative of the decedent to sue or be sued on such a claim. Without such power created by the law of the state of suit, no recovery can be had.’

We are unable to agree with plaintiffs' contention that the public policy of the State of California as expressed in its statutory enactments modifying the common-law rule as to the abatement of causes of action for torts, requires a holding that the plaintiffs in the instant actions may press their actions in the courts of California. Admittedly the causes of action arose in Arizona where the torts were committed, and the laws of Arizona are controlling. No actions having been commenced prior to the death of the tort-feasor, the right of action of the plaintiffs ceased in accordance with the rules established by the courts of Arizona. Therefore, when plaintiffs filed their actions in California no causes of action existed, and to permit a recovery in California for a tort committed in Arizona when the cause of action abated in Arizona, would be contrary to the general rule hereinbefore quoted, as expressed in 11 Am.Jur., sec. 182, page 491, as follows:

‘It is obvious under the foregoing rules that in order to maintain an action of tort founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foundation of the action must therefore be at least actionable by the law of the place in which it is done. Correspondingly, if no legally maintainable action is created by the place of the wrong, none exists elsewhere. The prosecution of transitory actions in a state or country other than that in which the cause of action arises is based on comity, so that, where under the lex loci no right of action exists, no action can be entertained by the courts of the forum, although a statute of the forum gives such a right of action. * * *’

In view of the foregoing we conclude that the learned trial judge correctly determined that the causes of action of plaintiffs abated and that the orders abating the actions should be and the same are hereby affirmed.

SCHOTTKY, Justice.

PEEK, J., and VAN DYKE, P. J., concur.