05 Grant Vs Mcauliffe
05 Grant Vs Mcauliffe
05 Grant Vs Mcauliffe
1953)
GRANT V. MCAULIFFE
41 Cal.2d 859 (Cal. 1953)
WILLIAM R. GRANT, Appellant, v.
FRANK
H.
McAULIFFE,
as
Administrator,etc., Respondent.RUSSELL
M. MANCHESTER, Appellant, v. FRANK
H. McAULIFFE, as Administrator,etc.,
Respondent.DOYLE
O.
JENSEN,
Appellant, v. FRANK H. McAULIFFE, as
Administrator, etc.,Respondent.
Docket Nos. Sac. 6416, 6417, 6418.
Supreme Court of California.In Bank.
December 23, 1953. *860
APPEALS from orders of the Superior Court of
Plumas County abating actions on claims against an
estate. William M. Macmillan, Judge. Orders reversed.
J. Oscar Goldstein, P.M. Barceloux, Burton J. Goldstein and Goldstein, Barceloux Goldstein for Appellants.
Honey Mayall and John J. Hurley for Respondent.
*861
TRAYNOR, J.
On December 17, 1949, plaintiffs W.R. Grant and
R.M. Manchester were riding west on United States
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 ap-
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es 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].) [2] "[N]o court can en-
force 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,
291 F. 769, 770.) [3] But the forum does not adopt
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Wabash, St. L. Pac. Ry. Co., supra, 61 Iowa 441; Orr v. Ah-
685].)
Defendant contends, however, that the characterization of survival of causes of action as substantive or
procedural is foreclosed by Cort v. Steen, 36 Cal.2d 437,
442 [ 224 P.2d 723], where it was held that the California survival statutes were substantive and therefore
did not apply retroactively. The problem in the present proceeding, however, is not whether the survival
statutes apply retroactively, but whether they are substantive or procedural for purposes of conflict of laws.
[8] "`Substance' and `procedure' . . . are not legal concepts of invariable content" ( Black Diamond Steamship
Corp. v. Stewart Sons, 336 U.S. 386, 397 [69 S.Ct. 622,
93 L.Ed. 754]. See, also, Guaranty Trust Co. v. York, 326
U.S. 99, 109 [65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R.
1231]; Sampson v. Channell, 110 F.2d 754, 756, 758; Estate of Caravas, 40 Cal.2d 33, 41-42 [ 250 P.2d 593];
W.W. Cook, The Logical and Legal Bases of the Conflict of Laws (1942), c. 6: "Substance and Procedure"),
and 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.
[9] Defendant also contends that a distinction must be
drawn between survival of causes of action and re-
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EDMONDS, J.
I concur in the conclusion that the order granting the
defendant's motion to abate should be affirmed.
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 accrued *868 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
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