Grant v. McAuliffe

SCHAUER, J.

I dissent. In Cort v. Steen (1950), 36 Cal. 2d 437, 442 [ 224 P.2d 723 ], this court held that under the doctrine of nonsurvivability the abatement of an action by the death of the injured person through the tort feasor’s act or otherwise, or by the death of the tort feasor, abates the wrong as well; that the effect of a survival statute is to create a right or cause of action rather than to either continue an existing right or revive or extend a remedy theretofore ac *868 crued for the redress of an existing wrong; and that consequently a survival statute enacted after death of the tort feasor did not apply to the tort or cause of action involved. And more recently, in Estate of Arbulich (1953), ante, pp. 86, 88-89 [ 257 P.2d 433 ], we recognized the rule that the burden of proof provisions of the Probate Code sections (259 et seq.) dealing with reciprocal inheritance rights are not merely procedural in nature, but, rather, are substantive statutes regulating succession, and that consequently such rights are to be determined by the law as it existed on the date of decedent’s death. (See, also, Estate of Giordano (1948), 85 Cal.App.2d 588, 592, 594 [ 193 P.2d 771 ].)

Irreconcilably inconsistent with the cases cited in the preceding paragraph, the majority now hold that “Survival is not an essential part of the cause of action itself but relates to the procedures available for the enforcement of the legal claim for damages. Basically the question is one of the administration of decedents’ estates, which is a purely local proceeding.” If the above stated holding is to prevail, then for the sake of the law’s integrity and clarity, and in fairness to lower courts and to counsel, the cited cases should be expressly overruled. But even more regrettable than the failure to either follow or unequivocally overrule the cited cases is the character of the “rule” which is now promulgated: the majority assert that henceforth “a statute or other rule of law will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made,” thus suggesting that the court will no longer be bound to consistent enforcement or uniform application of “a statute or other rule of law” but will instead apply one “rule” or another as the untrammeled whimsy of the majority may from time to time dictate, “according to the nature of the problem” as they view it in a given case. This concept of the majority strikes deeply at what has been our proud boast that ours was a government of laws rather than of men.

Although any administration of an estate in the courts of this state is local in a procedural sense, the rights and claims both in favor of and against such an estate are substantive in nature, and vest irrevocably at the date of death. (Estate of Patterson (1909), 155 Cal. 626, 634 [ 102 P. 941 , 132 Am. St.Rep. 116, 18 Ann.Cas. 625, 26 L.R.A.N.S. 654 ].) Since this court has clearly held that a right or cause of action created by a survival statute is likewise substantive, rather than procedural, we should hold, if we would follow the law, *869 that the trial court properly granted defendant’s motions to abate.

Spence, J., concurred.