De La Torre v. Johnson

SEAWELL, J.

The question presented by this mo-

tion to substitute in the place of defendant Johnson the executor of his estate and to continue the action against said executor as a defendant and the counter-motion to dismiss the appeal herein, is whether or not a person who suffers a personal injury in the course of his employment at the hands of a tort-feasor who is not his employer may, after a judgment rendered against him in the court below, continue to prosecute an appeal pending in this court after the death of said tort-feasor in the absence of express statutory provisions authorizing the continuance of the proceeding. Both at common law and under the general provisions of the statutes of this state such an action abates, and unless there can be found some statute altering the rule in this particular case this appeal must be dismissed. It is the claim of appellant that authority to continue the appeal inheres in the power conferred by the constitutional amendment authorizing the enactment of the Workmen’s Compensation, Insurance and Safety Act, and if the right to continue the prosecution is not expressly given it is, nevertheless, conferred by the provisions ,of the act adopted in obedience to the constitutional mandate.

The facts are that the plaintiff and appellant, Albert De La Torre, on the twenty-seventh day of October, 1926, filed a notice of a motion for an order substituting in the place and stead of defendant and respondent W. P. Johnson, who died subsequent to the entry of judgment in the court below, his executor, and allowing the action to be continued against said executor as a codefendant. The executor thereupon filed notice of a motion to dismiss the appeal as to said defendant Johnson upon the ground that the cause of action set forth in the complaint against said defendant abated upon his death. It appears from the affidavits filed by the parties in support of their respective motions that the action is one to recover damages in the sum of seventy-five thousand dollars for personal injuries sustained through the alleged negligent operation of an automobile; and that respondent Johnson was the owner and respondent Smith was

[757]

his chauffeur and the driver in charge of the automobile at the time said injuries were inflicted upon appellant. The defendants filed separate answers. Defendant Johnson denied that the accident took place while defendant Smith was acting in the course of his employment, and alleged that Smith was engaged on an errand of his own at the time. Defendant Smith denied all allegations of negligence. At the close of the evidence defendant Johnson moved for a directed verdict on the ground that the evidence showed as a matter of law that Smith was not acting within the course of his employment when the accident occurred. The motion was granted. The issues in the case as to the defendant Smith were submitted to the jury, which returned a verdict in his favor. Judgment was accordingly entered on June 10, 1926. Plaintiff’s motion for a new trial was denied. On July 19, 1926, he filed a notice of appeal to this court. Defendant Johnson died on August 24, 1926.