George v. McManus

SHAW, J.

As a result of a collision between two automobiles, one of which was owned by Joseph McManus and the other by plaintiff, that of the latter was badly broken and injured. Plaintiff, alleging that the injuries to his car were caused by the negligence of McManus, brought this action to recover damages therefor. Pending suit defendant Mc-Manus died, and upon motion of plaintiff, made under section 385 of the Code of Civil Procedure, the personal representatives of McManus were substituted as defendants.

Judgment went for plaintiff, from which, and an order denying their motion for a new trial, the substituted defendants prosecute this appeal.

In addition to their answer denying the material allegations of the complaint, defendants filed a counterclaim alleging that in said collision and by reason of the negligence of plaintiff in operating his car he caused it to collide with the automobile of Joseph McManus, by reason whereof it was broken and injured and for which they asked judgment against plaintiff for the damages so alleged to have been sustained.

Appellants insist that upon the death of defendants’ testator the action abated, and therefore the court should have granted a motion to that effect made by them. It may be conceded that such was the rule at common law. This rule, however, we think has been modified by section 1584 of the Code of Civil Procedure, which provides that, “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 goods or chattels of any such person, . . . ” Appellants interpret this statute to apply alone to cases where the deceased has, in his lifetime, destroyed goods or chattels of which he was in possession. To so construe the section would, in our opinion, deprive it of the meaning intended by

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the legislature in enacting it. Each of the words, “wasted, destroyed, taken, or carried away,” must not only be given some effect, but should be construed in accordance with the plain import of the language used. The chattels might be taken, carried away, or converted, without being ‘ ‘ destroyed, ’ ’ and the converse is likewise true. We think it was the intention of the legislature in adopting the provision to modify the well known common-law rule to the extent that where a deceased person had in his lifetime wrongfully destroyed personal property of another to his damage, such person should have a right of action against the personal representatives of such wrongdoer for the recovery of damages sustained by reason of the wrongful act. It is immaterial that deceased was not benefited by the act, as was the case in