Sherwin v. Southern Pacific Co.

SHAW, J.

The appeal is from an order granting the defendant’s motion for a new trial.

The action was begun by the decedent, B. E. Sherwin, in his lifetime, to recover damages caused by bodily injuries received by him through the negligence of the defendant. There was a trial, resulting in a verdict and judgment in his favor. Proceedings for a new trial were immediately instituted by the defendant, but before the hearing of its motion the plaintiff died and the present plaintiff, his executrix, was substituted as plaintiff. Thereafter the court below granted the motion and ordered a new trial. There was no appeal from the judgment.

The respondent makes the preliminary objection that the action abated upon the death of the original plaintiff. The objection is based on the theory that the granting of the new trial vacates the judgment and upon the familiar rule that a right of action for damages for personal injuries to the

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plaintiff caused by negligence of the defendant does not survive the death of the plaintiff. It is contended that the order granting a new trial sets the matter again at large without a judgment, to as full extent as if there had been no judgment. We think the objection is untenable. It is well settled that the death of the plaintiff in such an action, after a judgment in his favor, and while the judgment stands, does not abate the action or affect the validity of the judgment. Such judgment becomes a part of his estate and may be enforced by his representatives. Accordingly, it has been held that the death of the plaintiff after such judgment and while a motion for a new trial is pending, or during the pendency of an appeal by the defendant from an order denying a new trial, does not abate the action, and that in such a case the judgment stands until it is vacated on the appeal, and that if the order is affirmed, the original judgment is good.

(Fowden

v.

Pacific C. S. Co.,

149 Cal. 154, [86 Pac. 178].) The question of the effect of an order granting a new trial, in such a case, when the death occurs after the judgment and either before or after the granting of the new trial has not been heretofore presented to this court, so far as we are advised.