Johnson v. Key System Transit Lines

This is a ease of first and, probably, last impression. The question is whether an action for wrongful death survives the plaintiff heir. No California decision directly passes upon it. By amendment effective September 15, 1961 the statute (Prob. Code, § 573) now provides expressly for such survival.

In 1956, Melvin L. Johnson was killed in the collision of a train of defendant and the automobile in which he was riding. His mother, alleging that she was his sole heir, filed an action for damages for his death. The mother died in 1958, and the present plaintiff, as special administrator, was substi tuted herein. The case went to trial in 1960. At the close of plaintiff’s case, motion for nonsuit was granted on the ground that the cause of action did not survive the death of the mother.

At common law, a tort action did not survive either the injured party or the tortfeasor. The statutory trend to modification of this rule was marked in England by Lord Campbell’s Act, adopted in 1846. Since 1872, California has provided by statute (Code Civ. Proe., § 377) that heirs or personal representatives of a decedent may maintain an action for his wrongful death. This statute, however, met…