Nash v. Wright

MOORE, P. J. Defendant Belyea having prevailed in the court below in an action for damages arising from the death of plaintiffs’ decedent, allegedly caused by the tor[476]tious act of Belyea, the plaintiffs appealed to this court, action 15567. A reversal of the judgment has been ordered by opinion this day filed (see ante, p. 467 [186 P.2d 686]). After that appeal had been lodged Belyea deceased and appellant qualified as the executor of his last will and testament. After due presentation and rejection of their claim plaintiffs moved the court below for an order substituting appellant as defendant in the place and stead of Belyea. From the order granting such motion comes this appeal.

The original cause of action was for damages suffered by plaintiffs as heirs of Ned A. Nash. Appellant now contends that since such action is based upon the “wrongful death of decedent,” it does not survive the tort feasor. The labor incident to the task of deriving a solution of the issue thus presented is minimized by the decision in Hunt v. Authier, 28 Cal.2d 288 [169 P.2d 913]. By that action the heirs of Doctor Hunt sued the administratrix of the estate of his assailant for the wrongful death of the doctor. (Code Civ. Proc., § 377.) Upon a review of the judgment of dismissal after the administrator’s demurrer had been sustained, the court after an exhaustive review of the legislation and the decisions upon the doctrine of survivability of tort actions held that by virtue of the language of section 574 of the Probate Code, as amended in 1931, any person may maintain an action against the administrator of the estate of a decedent who in his lifetime has wasted, destroyed or carried away the property of the plaintiff; that under section 574 of the Probate Code the injury suffered by the widow and children of him who was killed by the tortious act of one who subsequently deceased is an injury to their property, since it affects their right to receive future support from their decedent and therefore survives as an action against the estate of the tort feasor; that the definitions of the word “property” as set forth in the Civil Code, section 14, do not exclude the injuries suffered from the loss of spouse or parent from the category of property as used in section 574.

The cause of action of respondents involves a diminution of their support both in presente and in expectancy which they would have received from their decedent. Such support, although it came by virtue of Mr. Nash’s earning power, was the “estate” of respondents, and the loss they suffered by reason of his death existed during the lifetime of Belyea. It follows that the latter’s estate is liable to respondents for such loss.