# Johnston v. Long > California Supreme Court · May 6, 1947 · 30 Cal. 2d 54 URL: https://www.frixlaw.com/law-library/cases/9572023 ## Case - **Full name:** HAROLD R. JOHNSTON, Respondent, v. RALPH C. LONG Et Al., Appellants - **Court:** California Supreme Court - **Decided:** May 6, 1947 - **Citations:** 30 Cal. 2d 54; 181 P.2d 645; 1947 Cal. LEXIS 149 - **Precedential status:** Published - **Opinion:** Dissent by Schauer - **Judges:** Traynor, Edmonds, Schauer - **Cited by:** 73 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9572023 ## Opinion text SCHAUER, J. I dissent. In liberal construction of section 572 of the Probate Code I would hold that in such a case as this the executor should be liable exclusively in his representative capacity. When an executor conducts the business of an estate under authorization of the court and the Probate Code he is not personally liable for the contract debts and obligations incurred in carrying on such business. No more, I think, should he, in the absence of personal fault, be personally liable for torts of estate employes. His actions in the premises are purely in the capacity of executor. The employe whose fault causes the injury to another is not the employe of the executor personally. He is the employe of the executor only in the latter’s representative status. The doctrine of respondeat superior, then, should pass the burden on to the real employer, to the executor in his representative capacity but not against him otherwise. It is asserted that the law which holds that an officer of a corporation is not liable under the doctrine of respondeat superior for the torts of corporate employes except where the officer is at fault, cannot be applied to executors; that the corporate employe’s liability can be related directly to the corporation because the latter is an entity and can be sued, but that the estate of a decedent is not an entity and cannot be sued. I do not find this proposition persuasive. If the estate of a decedent is enough of an entity to carry on a business, to contract and pay debts, and realize profits and losses, it should be enough of an entity to be sued. In fact the books are replete with cases in which estates, acting through the executors or administrators, have sued and been sued. The Probate Code (see §§ 572, 573 et seq. and Code Civ. Proc., § 369) certainly authorizes such proceedings in relation to *82 causes ex contractu. The question here is: Is this particular tort action authorized as against the executor in his official capacity ? Section 572 (Prob. Code) declares that “the court may authorize the executor ... to continue the operation of the decedent’s business to such an extent and subject to such restrictions as may seem to the court to be for the best interest of the estate and those interested therein.” The operation of a business ordinarily includes participation as a party plaintiff or defendant in such litigation as may arise from normal conduct of the business. Tort actions are not abnormal in the conduct of a business. Surely it cannot be seriously asserted that a business such as that here involved could be carried on for extended periods without the definite possibility of tortious conduct of some employe; human experience demonstrates the contrary. Of course, it is not intimated that the court in authorizing the conduct of the business intended to authorize the commission of torts by employes. But the application of the doctrine of respondeat superior does not depend on express or intentional authorization of tortious conduct. (16 Cal.Jur. 1101-1102, § 61.) It seems to me that the declaration in the majority opinion that “If section 572 has any effect on the question of tort liability of the estate, the purpose of that section as well as the purpose of any authorization in the will for the carrying on of the business may be fully carried out by applying the rules of the Restatement of Trusts in regard to such liability [personal on the trustee] as well as the representative’s right of reimbursement out of the assets of the estate” is thoroughly unrealistic, unwarranted and impractical. If it is to be recognized that the liability is ultimately and in justice that of the estate, then that liability should be imposed directly on the estate rather than through the round-about method espoused in the opinion. The opinion says, in effect, that the nonnegligent executor is personally liable in legalistic form but not in actual substance because he may ultimately recover from the estate. Such method must inevitably tend to multiply litigation and often may result in leaving a nonnegligent executor with the actuality as well as the form of personal liability. Section 572 (Prob. Code) in its present substance is before us for initial construction in this case. We should not, *83 on this open question, evolve a construction which seems so certain to produce multiplicity of suits, delays in final settlement of estates, and, at least occasionally, admittedly unjust actual responsibility, all stemming from the unrealistic concept that authorization to an executor to conduct a business in his official capacity does not carry with it authorization to sue or be sued in the same capacity in respect to torts committed in doing the very thing authorized. The judgment in this case, as well as the verdict upon which it is based, is in such form and substance as to warrant its construction as running against the defendant Long solely as executor of the estate. So construed the judgment could well be affirmed unless precluded by the facts that Long had been discharged as executor and the estate proceedings closed, and not reopened, prior to institution of the action. The questions which would arise as to the competence of Long to defend as executor without reopening the probate proceedings, and as to the validity and enforceability of the judgment, if construed as suggested, I do not here reach because discussion thereof, in view of the majority holding, would be academic at this stage. The majority opinion construes the judgment as running against Mr. Long personally and as so construed affirms it. In my view it should be construed, and can properly be affirmed if at all, only as against Mr. Long as executor of the estate. If it cannot he affirmed against him in his representative capacity then it should be reversed and the cause remanded for further proceedings. Hence, regardless of what conclusion might be reached as to Mr. Long’s capacity to defend as executor and as to the validity and enforceability of the judgment if construed to bind him only in his representative capacity, I am compelled to dissent from the majority’s judgment and opinion. Appellants’ petition for a rehearing was denied June 4, 1947, and the opinion was modified to read as above. Edmonds, J., Schauer, J., and Spence, J., voted for a rehearing. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9572023. Public record. Not legal advice.