Johnson v. Key System Transit Lines

DRAPER, P. J.—

This is a ease of first and, probably, last impression. The question is whether an action for wrongful death survives the plaintiff heir. No California decision directly passes upon it. By amendment effective September 15, 1961 the statute (Prob. Code, § 573) now provides expressly for such survival.

In 1956, Melvin L. Johnson was killed in the collision of a train of defendant and the automobile in which he was riding. His mother, alleging that she was his sole heir, filed an action for damages for his death. The mother died in 1958, and the present plaintiff, as special administrator, was substi

[441]

tuted herein. The case went to trial in 1960. At the close of plaintiff’s case, motion for nonsuit was granted on the ground that the cause of action did not survive the death of the mother.

At common law, a tort action did not survive either the injured party or the tortfeasor. The statutory trend to modification of this rule was marked in England by Lord Campbell’s Act, adopted in 1846. Since 1872, California has provided by statute (Code Civ. Proe., § 377) that heirs or personal representatives of a decedent may maintain an action for his wrongful death. This statute, however, met only the problem of death of the injured party. The California rule was clear that the cause of action died with the tortfeasor

(Clark

v.

Goodwin,

170 Cal. 527 [150 P. 357, L.R.A. 1916A 1142]). Despite a trend in other jurisdictions toward the view that the cause of action should survive the tortfeasor, California retained the older rule until 1946. In that year, our Supreme Court held that wrongful death of a person constituted an injury to his “estate” or that of his dependent heirs, in the sense of diminishing support he would otherwise have provided to them. Thus the cause of action was one for injury to 1 ‘ property” and, under the code (Prob. Code, § 574) survived the death of the tortfeasor to the extent of such property damage only

(Hunt

v.

Authier,