Smith v. Finley

[600]

ADAMS, P. J.

Plaintiffs, who are husband and wife, brought this action against the administrator of the estate of M. B. Finley, deceased, charging that decedent Finley had so negligently operated a motor vehicle as to cause it to collide with two riding horses on which plaintiffs were mounted and as a result plaintiff Gordon Smith was thrown to the ground, sustaining personal injuries, and one of the horses was injured. The accident occurred on August 8, 1949. Finley died December 23,1949, and this action was commenced July 27, 1950. The ease was tried by the court sitting without a jury and defendant’s counsel conceded that the accident was due to negligence of decedent. He also conceded that Mr. Smith’s testimony as to the amount of his expenditures was true. No testimony' was presented by defendant. The court gave and entered judgment in favor of plaintiffs for $1,653.26 for personal injuries to Gordon H. Smith and his incidental expenses, and $334 for injuries to the horse. From that judgment this appeal was taken. On October 1,1949, and before the death of M. B. Finley, section 956 of the Civil Code came into effect. It provides:

“A

thing in action arising out 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, ...”

Appellant contends that since said section was not in effect

at the time of the accident

it is not applicable in this case. Respondents contend that since said section was in effect

at the time the tort feasor died

it is applicable. Both parties rely on

Cort

v.

Steen,

36 Cal.2d 437 [224 P.2d 723]. In that case an action against the administrator of the estate of the deceased tort feasor was commenced prior to the effective date of section 956,