Grant v. McAuliffe

Citation41 Cal.2d 859,42 A.L.R.2d 1162,264 P.2d 944
Parties, 42 A.L.R.2d 1162 GRANT v. McAULIFFE. MANCHESTER v. McAULIFFE. JENSEN v. McAULIFFE. Sac. 6416 to Sac. 6418.
Decision Date23 December 1953
CourtUnited States State Supreme Court (California)

Goldstein, Barceloux & Goldstein, J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, San Francisco, and Jordan N. Peckham, Chico, for appellants.

Honey & Mayall and John J. Hurley, Stockton, for respondent.

TRAYNOR, Justice.

On December 17, 1949, plaintiffs W. R. Grant and R. M. Manchester were riding west on U. S. Highway 66 in an automobile owned and driven by plaintiff D. O. Jensen. Defendant's decedent, W. W. Pullen, was driving his automobile east on the same highway. The two automobiles collided at a point approximately 15 miles east of Flagstaff, Arizona. Jensen's automobile was badly damaged, and Jensen, Grant, and Manchester suffered personal injuries. Nineteen days later, on January 5, 1950, Pullen died as a result of injuries received in the collision. Defendant McAuliffe was appointed administrator of his estate and letters testamentary were issued by the Superior Court of Plumas County. All three plaintiffs, as well as Pullen, were residents of California at the time of the collision. After the appointment of defendant, each plaintiff presented his claim for damages. He rejected all three claims, and on December 14, 1950, each plaintiff filed an action against the estate of Pullen to recover damages for the injuries caused by the alleged negligence of the decedent. Defendant filed a general demurrer and a motion to abate each of the complaints. The trial court entered an order granting the motion in each case. Each plaintiff has appealed. The appeals are based on the same ground and have therefore been consolidated.

The basic question is whether plaintiffs' causes of action against Pullen survived his death and are maintainable against his estate. The statutes of this state provide that causes of action for negligent torts survive the death of the tortfeasor and can be maintained against the administrator or executor of his estate. C.C., § 956; C.C.P., § 385; Prob.C., §§ 573, 574. Defendant contends, however, that the survival of a cause of action is a matter of substantive law, and that the courts of this state must apply the law of Arizona governing survival of causes of action. There is no provision for survival of causes of action in the statutes of Arizona, although there is a provision that in the event of the death of a party to a pending proceeding his personal representative can be substituted as a party to the action, Arizona Code, 1939, § 21-534, if the cause of action survives. Arizona Code, 1939, § 21-530. The Supreme Court of Arizona has held that if a tort action has not been commenced before the death of the tortfeasor a plea in abatement must be sustained. McClure v. Johnson, 50 Ariz. 76, 82, 69 P.2d 573. See also McLellan v. Automobile Ins. Co. of Hartford, Conn., 9 Cir., 80 F.2d 344.

Thus, the answer to the question whether the causes of action against Pullen survived and are maintainable against his estate depends on whether Arizona or California law applies. In actions on torts occurring abroad, the courts of this state determine the substantive matters inherent in the cause of action by adopting as their own the law of the place where the tortious acts occurred, unless it is contrary to the public policy of this state. Loranger v. Nadeau, 215 Cal. 362, 10 P.2d 63, 84 A.L.R. 1264. '(N)o court can enforce any law but that of its own sovereign, and, when a suitor comes to a jurisdiction foreign to the place of the tort, he can only invoke an obligation recognized by that sovereign. A foreign sovereign under civilized law imposes an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs.' Learned Hand, J., in Guinness v. Miller, D.C., 291 F. 769, 770. But the forum does not adopt as its own the procedural law of the place where the tortious acts occur. It must, therefore, be determined whether survival of causes of action is procedural or substantive for conflict of laws purposes.

This question is one of first impression in this state. The precedents in other jurisdictions are conflicting. In many cases it has been held that the survival of a cause of action is a matter of substance and that the law of the place where the tortious acts occurred must be applied to determine the question. Burg v. Knox, 334 Mo. 329, 335-338, 67 S.W.2d 96; Chubbuck v. Holloway, 182 Minn. 225, 227-230, 234 N.W. 314, 868, followed in Kerston v. Johnson, 185 Minn. 591, 593, 242 N.W. 329, 85 A.L.R. 1; Davis, Adm'r v. New York & N. E. R. Co., 143 Mass. 301, 305-306, 9 N.E. 815; Hyde, Adm'r v. Wabash, St. L. & Pac. Ry. Co., 61 Iowa 441, 444, 16 N.W. 351 (but see Gordon v. Chicago, R. I. & P. Ry. Co., 154 Iowa 449, 451, 134 N.W. 1057); Mexican Cent. Ry. Co. v. Goodman, 20 Tex.Civ.App. 109, 110, 48 S.W. 778 (but see Texas & Pac. Ry. Co. v. Richards, 68 Tex. 375, 378, 4 S.W. 627); Needham, Adm'x v. Grand Trunk Ry. Co., 38 Vt. 294, 307-311; Ormsby Ex'rs v. Chase, 290 U.S. 387, 388, 54 S.Ct. 211, 78 L.Ed. 378, followed in McIntosh v. General Chemical Defense Corp., D.C., 67 F.Supp. 63, 64; Woollen v. Lorenz, 68 App.D.C. 389, 98 F.2d 261, 262, Gray v. Blight, 10 Cir., 112 F.2d 696, 697-698, and Muir v. Kessinger, D.C., 35 F.Supp. 116, 117; Orr v. Ahern, Adm'r, 107 Conn. 174, 178-180, 139 A. 691; Potter v. First National Bank, 107 N.J.Eq. 72, 74-75, 151 A. 546, followed in Friedman v. Greenberg, 110 N.J.L. 462, 464-466, 166 A. 119, 87 A.L.R. 849, and Rathgeber v. Sommerhalder, 112 N.J.L. 546, 548-549, 171 A. 835; Sumner v. Brown, Ex'rx, 312 Pa. 124, 127, 167 A. 315. The Restatement of the Conflict of Laws, section 390, is in accord. It should be noted, however, that the majority of the foregoing cases were decided after drafts of the Restatement were first circulated in 1929. Before that time, it appears that the weight of authority was that survival of causes of action is procedural and governed by the domestic law of the forum. Austin's Adm'r v. Pittsburg, C., C., & St. L. Ry. Co., 122 Ky. 304, 309-310, 91 S.W. 742, 5 L.R.A.,N.S., 756; Baltimore & Ohio R. Co. v. Joy, 173 U.S. 226, 231, 19 S.Ct. 387, 43 L.Ed. 677; Clough v. Gardiner, 111 Misc. 244, 248-249, 182 N.Y.S. 803; Herzog v. Stern, 264 N.Y. 379, 383-384, 191 N.E. 23, followed in Demuth v. Griffin, 253 App.Div. 399, 401, 2 N.Y.S.2d 2; Domres v. Storms, 242 App.Div. 807, 275 N.Y.S. 212; Silverman v. Rappaport, 165 Misc. 543, 545-546, 300 N.Y.S. 76; Taynton v. Vollmer, 242 App.Div. 854, 275 N.Y.S. 284; Gordon v. Chicago, R. I. & P. Ry. Co., 154 Iowa 449, 451, 134 N.W. 1057; In re Vilas' Estate, 166 Or. 115, 123-124, 110 P.2d 910; Martin v. Baltimore & Ohio R. Co., 151 U.S. 673, 692-693, 14 S.Ct. 533, 38 L.Ed. 311; Martin v. Wabash R. Co., 7 Cir., 142 F. 650, 651; Page v. United Fruit Co., 1 Cir., 3 F.2d 747, 754; Matter of Killough's Estate, 148 Misc. 73, 85-89, 265 N.Y.S. 301; Texas & Pac. Ry. Co. v. Richards, 68 Tex. 375, 378, 4 S.W. 627. See also Barker v. Ladd, Fed.Cas.No.990, 3 Sawy. 44; Gaskins v. Bonfils, D.C., 4 F.Supp. 547, 551; Luster v. Martin, 7 Cir., 58 F.2d 537, 539-540; Portland Gold Mining Co. v. Stratton's Independence, Ltd., D.C., 196 F. 714, 716-717; Whitten v. Bennett, C.C., 77 F. 271, 273; Winslow v. Domestic Engineering Co., D.C., 20 F.Supp. 578, 579. Many of the cases, decided both before and after the Restatement, holding that survival is substantive and must be determined by the law of the place where the tortious acts occurred, confused the problems involved in survival of causes of action with those involved in causes of action for wrongful death. See, for example, the precedents on which the courts relied in Hyde, Adm'r v. Wabash, St. L. & Pac. Ry. Co., supra, 61 Iowa 441, 16 N.W. 351; Orr v. Ahern, supra, 107 Conn. 174, 139 A. 691; and Ormsby Ex'rs v. Chase, supra, 290 U.S. 387, 54 S.Ct. 211. The problems are not analogous. See Schumacher, 'Rights of Action Under Death and Survival Statutes,' 23 Mich.L.Rev. 114, 116-117, 124-125. A cause of action for wrongful death is statutory. It is a new cause of action vested in the widow or next of kin, and arises on the death of the injured person. Before his death, the injured person himself has a separate and distinct cause of action and, if it survives, the same cause of action can be enforced by the personal representative of the deceased against the tortfeasor. The survival statutes do not create a new cause of action, as do the wrongful death statutes. Needham, Adm'x v. Grand Trunk Ry. Co., supra, 38 Vt. 294, 303-306; Austin's Adm'r v. Pittsburg, C., C. & St. L. Ry. Co., supra, 122 Ky. 304, 308-310, 91 S.W. 742; Martin v. Baltimore & Ohio R. Co., supra, 151 U.S. 673, 696, 698, 701, 14 S.Ct. 533; Patton v. Brady, 184 U.S. 608, 612-615, 22 S.Ct. 493, 46 L.Ed. 713; Spring v. Webb, D.C., 227 F. 481, 484-485; 1 C.J.S., Abatement and Revival, § 160, page 211; Schumacher, supra, 23 Mich.L.Rev. 114, 124-125. The English courts have reached the same result in construing similar statutes. Davies v. Powell Dufferin Assoc. Collieries, Ltd., (1942) A.C. 601, 610-616; Rose v. Ford (1937) A.C. 826, 852, 855-856. See also Bradshaw v. Lancashire and Yorkshire Ry. Co., (1875) 10 C.P. 189, 192-193. They merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased. They are analogous to statutes of limitation, which are procedural for conflict of laws purposes and are governed by the domestic law of the forum. Biewend v. Biewend, 17 Cal.2d 108, 114, 109 P.2d 701, 132 A.L.R. 1264. Thus, a cause of action arising in another state, by the laws of which an action cannot be maintained thereon because of lapse of time, can be enforced in California by a citizen of this state, if he has held the cause of action from the time it...

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