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8 U.S.F. L. Rev. 585 (1973-1974)
Survival of Punitive Damages in Wrongful Death Cases

handle is hein.journals/usflr8 and id is 597 raw text is: Survival of Punitive Damages in Wrongful Death Cases By Arden C. McClelland* Harold J. Truett II1** Long ago it might have been the trial attorney's tactic, when faced by a court unconvinced with his logic, to befuddle them with Latin. Such a humanistic theory could well explain the rise and fall of many a long buried legal theorem which yet rules from the grave. One such maxim first uttered in despair may well have been actio personalis moritur cum persona.' Actually encompassing two distinct common law limitations,2 few abstractions paint a clearer portrait of a human system caught in its own circuitous logic to the exclusion of its ultimate goals. And the circle continues to be run. Despite the demise of common law rigorism and the advent of modern pleading and theory which followed at the heel of technological advance,' notions centuries * B.A., University of California (Los Angeles), 1968; J.D., University of Ore- gon, 1972; Member, California Bar. ** Member, Law Review Staff. 1. Broadly stated, the personal tort actions die with the person of either the plaintiff or defendant. Holdsworth reports the first appearance of the maxim in Coke's report of Pinchon's Case, 9 Coke 86b, 77 Eng. Rep. 859 (K.B. 1609); 3 W. HOLDSWORTH, A HISTORY OF ENGLISH LAw, 576 (7th ed. 1956). However, Professor Malone observes such a notion to have been current thinking almost two hundred years earlier: Hankford v. Therning, Y.B. Hil., 2 Hen. 4, pl. 20 (1410). See also Malone, The Genesis of Wrongful Death, 17 STAN L. REV. 1043, 1044 (1965). 2. The first doctrine prevents both an active survival of an ex delicto action to the victim's personal representative and a passive survival of the liability against a wrongdoer's estate. The second refers to a maxim of much more recent origin, that the common law did not recognize the death of a human being as giving rise to a cause of action in a third party injured thereby. 3. The history of wrongful death is in a sense a novel of the nineteenth cen- turey, Malone, supra note 1, at 1043. Prior to the industrial revolution, unnatural death was the product of the robber, the burglar, or bad-tempered relative. In this setting, wrongful death was a matter of little concern to the civil law, and lawmen de- veloped no tools for the handling of it. Then, suddenly at mid-century society faced up in panic to a virtually new phenomenon-accidental death through corporate enter- prise. Tragedy as a result of indifference and neglect was suddenly upon us in the fac- tory, on the city streets, and on the rails. Nor was the principal villain of the piece

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