Harker v. Clark — 57 Cal. 245

Majority

p. 245

[No. 6,745.

Department Two.]

MARY A. HARKER et al. v. JANE W. CLARK, Administratrix.

Headnote

Action—Persona!. Injury—Death.—A right of action for wrongful imprisonment ceases with the death of the wrong-doer.

Appeal from a judgment in the Twelfth District Court, City and County of Ban Francisco. Daingerfibld, J.

JP. B. Ladd, for Appellants.

The rule is settled, both in England and in the old States, that such an action as the one at bar survives in favor of the estate of the party injured.

There being no justice in such a rule that saves the right of action in favor of an estate, and denies the same action when brought against the estate, the statute in California places both on the same footing. (Code Civ. Proc. § 1584.)

Gray & Haven, for Eespondent.

At common law, the traverse to plaintiffs’ declaration in such an action would be “ not guilty and no action founded in tort, in which the plea was “not guilty,” was held to survive against the administrator of the tort feasor. (Nicholson v. Elton, 13 Serg. & R. 416 ..)

The complaint avers, that defendant’s intestate in his lifetime, without probable cause, commenced a suit against plaintiff, and procured an order for the issuance of a writ for the arrest, detention, and imprisonment of the plaintiff Mary A. Barker, by virtue of which writ she was arrested and imprisoned until such arrest and imprisonment was adjudged to be without authority of law; and that in procuring her release she was compelled to and did employ an attorney, and paid him for his services therein $500. The complaint also avers the death of the intestate, the appointment of defendant as administratrix, and the presentation and disallowance of a claim for the $500.

p. 246

To the complaint the defendant demurred on the ground, among others, that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and thereupon judgment went for defendant.

This action is clearly within the maxim, “ a personal right of action dies with the person,” xnless the right of action has been kept alive by some statute. (Broom’s Legal Maxims, p. 869, etc.; 6 Wait’s Prac. 329, and cases there cited.) The statute under which the plaintiff claims a right to recover is § 1584, Code of Civil Procedure, by which a person “ may maintain an action against the executor or administrator of any testator or intestate who, in his lifetime, has wasted, destroyed, taken or carried away, or converted to his own use the goods or chattels of any such person.” The intestate Clark did not, by the arrest or imprisonment, or by thereby compelling the plaintiff Mary A. Barker to' pay $500 to her attorney, waste, destroy, take or carry away, or convert to his own use the goods or chattels of said Mary A. Barker.

Judgment affirmed.

Morrison, C. J., and Thornton, J., concurred.