HUNT v. AUTHIER (1945)

Plaintiffs appeal from an order and judgment entered thereon dismissing their action upon their failure to amend their complaint within the time allowed after defendant's demurrer to the complaint had been sustained.

On December 13, 1943, Dr. Verne C. Hunt, a physician and surgeon, was murdered in his office by Ephrem Mounsey, who, immediately after shooting the doctor, shot and killed himself. Plaintiffs, the surviving wife and three minor children of Dr. Hunt, filed an action in the Superior Court of Los Angeles, entitled ‘Damages for Wrongful Death,’ against Louise Authier, as Administratrix-with-Will Annexed of the Estate of Ephrem Mounsey, deceased, which alleged that ‘as a direct and proximate result of the * * * said wrongful acts of the said Ephrem Mounsey, deceased, and the death of the said Dr. Verne C. Hunt, these plaintiffs, each and all, did suffer and sustain great pecuniary loss and damage and the property, property rights and estate of said plaintiffs, and each of them, were thereby wasted and destroyed, all to their damage in the sum of $150,000.00,’ and that a claim in that sum, filed against the estate, had been rejected. The prayer asked that the court ‘adjudge and declare that the estate of said Ephrem Mounsey, deceased, is indebted to these plaintiffs in the sum of $150,000.00’ and that the sum constitutes a valid claim against the estate.

Appellants state in their brief that: ‘A general demurrer to the complaint was sustained upon the ground that the cause of action on behalf of the plaintiffs abated upon the death of the tort feasor.’ They concede that this action could not be maintained at common law, and unless express statutory authority sanctioning its survival can be found the ruling upon the demurrer was correct. They admit, also, that unless the case of Clark v. Goodwin, 1915, 170 Cal. 527, 150 P. 357, L.R.A.1916A, 1142, ‘can be distinguished upon the ground that statutory authority for the survival of the cause of action now exists, which did not exist—or was not called to the attention of the court—when the Clark case was decided,’ it is express authority for the ruling on the question of abatement and necessitates an affirmance of the judgment. In the Clark case a widow sought to recover judgment from the estate of Goodwin on the ground that he murdered her husband on the same day that he, himself, died, but the court held that under our statutes, then in effect, the cause of action for damages for wrongful death abated with the death of Goodwin and could not be maintained against his personal representative. See, also, to the same effect, Norton v. City of Pomona, 1935, 5 Cal.2d 54, 62, 53 P.2d 952; Gosling v. Nichols, 1943, 59 Cal.App.2d 442, 444, 139 P.2d 86. Appellants take the position that certain changes in our statutory law which became effective when the Probate Code was adopted in 1931, sixteen years after the decision was rendered in Clark v. Goodwin, supra, furnish the necessary statutory authority for their present action. They rely upon the latter part of section 574 of the Probate Code. That section reads as follows:

‘Sec. 574. Actions for trespass [Injury to property or destruction or conversion thereof.] 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.’ (Our emphasis.)

The first portion of this statute substituted the word ‘property,’ which we have italicized, for ‘goods' as it was printed in former section 1583, Code of Civil Procedure, which was repealed when the Probate Code was adopted. The present action, however, is in no way concerned with the first part of section 574, but there is a change in the latter portion which is all important from appellants' point of view. It consists of the substitution of the word ‘property,’ which we have placed in italics, for the words ‘goods and chattels,’ which had appeared in the former section 1584, Code of Civil Procedure. Appellants contend that the right to support and maintenance and to the comfort, society and protection of their deceased husband and father ‘constitute property within the meaning of the section and that such property was destroyed by the tortious act which resulted in the death of Dr. Hunt.’

While the present action, exclusive of its title, purports to be one arising under, and is couched in the language used in, section 574 of the Probate Code, nevertheless it is the nature of the cause and not the form of the action which determines its character. Vragnizan v. Savings Union, etc., Co., 1916, 31 Cal.App. 709, 711, 712, 161 P. 507. The gravamen of plaintiffs' action here is the tort-feasor's wrongful act and, in our opinion, it is not included among the tortious actions which survive under section 574 or section 573 of the Probate Code, or under any other statute of California. Section 573, in its opening passage, is an exact copy of former section 1582 of the Code of Civil Procedure. Both sections provide that: ‘Actions for the recovery of any property, real or personal, or for the possession thereof * * * may be maintained by and against executors and administrators in all cases in which the same might have been maintained by or against their respective testators or intestates * * *.’ In the case of Singley v. Bigelow, 1930, 108 Cal.App. 436, 291 P. 899, damages were sought from the estate of a druggist whose employee had, by mistake, delivered to one of the plaintiffs a package containing mercury powder instead of quinine, which was requested by written order. Because of the death of the druggist before the action was brought, the plaintiffs sought to avoid abatement of the action by resort to the language of section 1582, Code of Civil Procedure. In that case, as in the present instance, a demurrer was sustained for the reason that the action was one in tort and abated upon the death of the tort-feasor. In that case, as in this, the plaintiffs were allowed time within which to amend, and failing to amend, judgment was entered in favor of the representative of the decedent. In commenting upon the situation the court said, 108 Cal.App. at page 440, 291 P. at page 900: ‘Our attention is specially called to the words ‘any property,’ found in section 1582, Code of Civil Procedure. However, a reading of the section and a reference to the facts set forth in the complaint which we have detailed shows that this is not an action for the recovery of any property, either real or personal, or for the possession thereof. It is strictly an action to recover damages. No property belonging to the plaintiffs was taken possesion of by the deceased. So far as the complaint is concerned it does not show that there is any real or personal property in the possession of the executrix of the estate of the deceased to which the plaintiff's have any right, title, or claim to the possession thereof; nor are there any adverse claims involved in this action. The mere fact that, in an action for damages, judgment is entered for a certain sum of money, and that the money or judgment, when paid to the plaintiff in such an action, is property, does not characterize the action or bring it within the terms of section 1582, Code of Civil Procedure, as one for the recovery of any property, real or personal, or the possession thereof.' See, Gerberich v. Southern California Edison Co., 1938, 26 Cal.App.2d 471, 482, 79 P.2d 783. This language, while used in construing section 1582, is equally persuasive in considering the meaning of the word ‘property’ as used in section 574 of the Probate Code. The death of Dr. Hunt and the resultant pecuniary loss sustained by the widow and the minor children arise from and flow out of the wrongful act of the deceased tort-feasor. The injury to plaintiffs is one of a personal nature based upon their relationship to the deceased and his obligation to support and maintain them and is not an injury to their property or estate within the meaning of the word ‘property’ as used in section 574, for the pecuniary loss to the wife and minor children is an incident—an element of damage—growing out of the wrongful death. Singley v. Bigelow, supra; Russell v. Sunbury, 1881, 37 Ohio St. 372, 376, 377, 41 Am.Rep. 523; Hegerich v. Keddie, 1885, 99 N.Y. 258, 1 N.E. 787, 792–793, 52 Am.Rep. 25.

The appellants argue earnestly that ‘by the enactment of Section 574, it was the intention of the Legislature to obviate the hardship and obvious injustice of the common law rule as established in the case of Clark v. Goodwin, 170 Cal. 527, 150 P. 357, L.R.A.1916A, 1142,’ and point out that ‘A liberal definition of the term ‘property’ * * * will enable the courts to avoid the glaring inconsistency and obvious injustice of holding that a wife may recover against a deceased tort feasor for injuries done to her automobile, but she cannot recover for the infinitely greater loss which she has suffered in being deprived of the support and society of her husband.' While, naturally, we must sympathize with the bereaved widow and children in this case, we cannot, nor could the trial court, by a liberal definition furnish the relief which they seek. The new rule of law, for which their counsel so eloquently argues, if ever it is to become effective will require direct legislative action in the form of a statute free from ambiguity.

Judgment and order affirmed.

DESMOND, Presiding Justice.

PARKER WOOD, J., and FOX, Justice pro tem., concur.