(dissenting).
I feel constrained to dissent from the concept approved in the majority decision which adheres to the old common-law rule that a cause of action abates with the death of the tort-feasor in personal injury actions. I am not unaware of the adoption of the common-law rule by this court in actions of this kind in McClure v. Johnson, 50 Ariz. 76, 69 P.2d 573, 575. The court said in that case that the precise question of the survival of a cause of action after the death of the tort-feasor where death occurred before an action had been filed, had never been specifically determined in this state. It then observed that the court had held in many cases that the common law, “except as modified by statute or unsuited to our local system or condition,” is still in force in Arizona. It pointed out that the Lord Campbell Act adopted by Arizona had modified the common-law rule to the extent that the cause of action of an injured person survived his death and that section 3772, R.C.1928, section 21-530 A. C.A.1939, provides for the continuance of a pending action after the death of either party. The court then without further discussion adopted the rule laid down in McLellan v. Automobile Ins. Co. of Hartford, Conn., 80 F.2d 344, 349, an Arizona case decided a short time previously by the Circuit Court of Appeals of the Ninth Circuit to the effect that section 3772, supra, applied only to actions pending at the time of the death of the tort-feasor. If we hold that Arizona adopted the common-law rule of “actio personalis moritur cum persona” we are inclined to the view that the Federal Court correctly interpreted that section.
As above mentioned the court made no reference to the question of whether Arizona had adopted this rule of the common law. It concluded by saying:
“ * * * We are of the opinion that the decision of that court (in McLellan v. Automobile Ins. Co. of Hartford, Conn., et al., supra) was correct on the point referred to, and that under the law of Arizona when a tortfeasor dies before the commencement *288of an action, the cause of action does not survive his death, and a plea in abatement should be sustained if the fact appears on the face of the complaint, or a verdict should be directed in favor of defendant if it is first shown by the evidence. The rule seems a harsh one, for we cannot see why, as a matter of justice, the common-law disability should be removed if the action is filed before the tortfeasor dies, but remains if the death occurs too quickly for the injured party to commence the action. The remedy, however, is with the Legislature and not with the courts.”
Insofar as the above decision is concerned the court assumed that Arizona had adopted the common-law rule that a cause of action for personal injury does not survive the death of the tort-feasor. It is true that this court had previously held in Alabam’s Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658, that the right of action to recover damages for injuries which article 18, § 6, of the Arizona Constitution said should never be abrogated was the common-law action of negligence and became imbedded in the constitution. That decision was quoted by the Circuit Court of Appeals in the McLellan case, supra.
I am of the view that this is an erroneous interpretation of that section of the constitution. The interpretation is based upon the assumption that we had adopted the English common law in toto, which is not the case. Whether we did adopt the “actio personalis, etc.” rule with its concept of vengeance as the basis of recovery and as the measure of damages recoverable and that accordingly no cause of action survived against the estate of a deceased tort-feasor any more than a criminal prosecution survived against the criminal, appears to me to have been the very crux of the matter in the McClure case, supra, and its determination was of primary importance before adopting the rule laid down by the Federal Court of Appeals whose decisions are not binding upon us.
Section 1-106, A.C.A.1939, provides that:
“The common law, so far only as it is consistent with, and adapted to the natural and physical conditions of this state, and the necessities of the people thereof, and not repugnant to, or inconsistent with, the Constitution of the United States, or the constitution or laws of this state, or established customs of the people of this state, is hereby adopted and shall be the rule of decision in all courts of this state.”
It is the view of the minority members of this court that Arizona did not adopt the old English common-law rule to the effect that a cause of action against a tort-feasor abates with the death of the wrong-doer, until it was adopted by the decision of this court in the McClure case, supra. The common-law maxim, supra, was rooted in the concept that- the wrong to which the *289maxim applied was criminal in nature and that any recovery in damages was upon the theory of vengeance against the wrongdoer, not compensation of the injured person commensurate with the injury sustained. We certainly did not adopt the measure of damages applied under the common-law rule nor the theory upon which damages were recoverable. Pollock on Torts (11th Ed., p. 61) declared the rule against survival of actions against deceased tort-feasors to be “one of the least rational parts” of the old English common law.
In Waller v. First Savings & Trust Co., 103 Fla. 1025, 138 So. 780, at page 783, the court stated that:
“We may accept as true in this case the statement that under the common law of England, taking into consideration the English royalist theory that men were subjects and not citizens, tort actions were for vengeance and not for redress of wrongs by allowing compensation for Item, and that the rule there was accordingly to the effect that no cause of action survived against the estate of a deceased tortfeasor, any more than a criminal prosecution survives against the criminal.”
Such a concept of a legal remedy for a wrong done to a person does violence to and is repugnant to every principle of justice upon which the fabric of democratic government is built. It is not and was not consistent with or adapted to the necessities of the people of this state and we believe it is inconsistent with the constitution and the laws of the state. s
It was, at the date of the adoption of the constitution of Arizona, and is the law of torts today in this state and in every other state in the Union that the measure of damages for personal injury suffered through the wrong of another is that sum which will fairly compensate the injured person for the injuries sustained. It is not now and never has been even suggested that the measure of damages for injury to the person is punitive rather than compensatory. Even where the law allows punitive or exemplary damages where the injury results from the wilful or malicious acts of the wrong-doer, such damages are not recoverable unless compensatory damages are recovered upon which punitive damages may rest.
The adoption of the old common-law rule, supra, is so inconsistent with the law of torts for personal injuries where the tort-feasor survives and is so utterly unreasonable and unjust that it constitutes a reflection upon the intelligence and the high sense of justice traditionally possessed by the pioneer law makers of this territory and state. To reach such a conclusion from the indisputable facts relating to its adoption is a “reductio ad absurd-um”. There is a well-established maxim in American jurisprudence that there is no wrong without a remedy. Either this maxim must fall or the common-law rule *290of “actio personalis, etc.” supra, must be rejected.
This court in adopting the decision of the -Circuit Court of Appeals recognized its injustice and lack of logic to support it but excused its failure to reject it upon the ground that it was a matter for the legislature and not for the courts. It is our position that the- right to redress for a wrong suffered by an individual at the hands of another is so imbedded in the traditions, mores and laws of this country that it has crystallized into a universally recognized sound public policy. This court stated in Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220, 229, that:
“The declaration of ‘public policy’ is primarily a legislative function. The courts unquestionably have authority to declare a public policy which already exists and to base its decisions upon that ground. But in the absence of a legislative declaration of what that public policy is, before courts are justified in declaring its existence, such public policy should be so thoroughly established as a state of pub- ■ lie mind, so united and so definite and fixed that its existence is not subject to any substantial doubt. (Citing cases.) * * * ”
It is my view that the right of redress to every person against whom a wrong has been inflicted, is so thoroughly established as a- state o'f public mind, so united and so definite and fixed that its existence is not subject to substantial doubt and that this court upon the ground of public policy alone, and even in the absence of either organic or statutory authority, has not only the right but the duty under such circumstances as exist in this case, to ground its decision squarely upon public policy.
The McClure case, supra, was decided in 1937. It is interesting to note that at the time that decisipn was handed down the old English common-law rule of “actio personalis moritur cum persona” no longer existed in England. In 1934 by the Law-Reform (Miscellaneous Provisions) Act of that year the rule now applies in only four instances, to wit, “defamation”, “seduction”, “inducement of one spouse to desert the other” and to “petitions in divorce for damages for adultery”. In every other case the right of action now survives the death of the wrong-doer and did when McClure v. Johnson, supra, was decided. Pollock on Torts (15th Ed., p. 52).
Even before the Act of 1934, there were many exceptions to the maxim. Pollock on Torts, (15th Ed. also at p. 52) says:
“ * * * At common law, notwithstanding the death of either party, detinue or ejectment would lie where one person’s property had come wrongfully into the hands of another, and a wrong-doer could also be .sued in indebitatus assumpsit (upon a fictitious contract) for the pecuniary profits which his misappropriation enabled him to make. And, by a series of *291statutory enactments, some dating back to the dawn of the common law in the fourteenth century, actions of trespass and case could be brought wherever the tort had damaged property, real or personal. But, until 1934, if the tort merely affected the person, the right of action was extinguished by death. * * * ”
It will be seen from the above that England, even before 1934, had greatly modified the old common-law rule which this court claimed that we adopted. England recognized the injustice of the rule and by subterfuge and fiction devised means of circumventing its harshness.
The majority opinion disposes of the contention of appellant that the rule of “actio personalis moritur cum persona” is and was inconsistent with the constitution and laws of Arizona and repugnant thereto at the time of the adoption of the constitution and that said common-law rule was not adapted to the necessities of our people and therefore never became a part of our law, by simply stating the court agrees with the appellee, as expressed in its former decision of McClure v. Johnson, supra, and quotes a statement therefrom that it is a harsh and unjust rule but the remedy is with the Legislature. In other words the majority members are content for this court to remain a slave to an ancient and barbaric legal concept long since outworn and which it admits is harsh and unjust, merely because the court in a single opinion held that we had adopted the old common-law maxim, supra, as a rule of decision in this state. The holding upon which the majority decision in this case is based cannot be said to be stare decisis and binding upon us. No rule of property has arisen out of it and none can arise. If there was ever a reason for the existence of such a rule that reason did not exist at the time of the establishment of the territory of Arizona or at the time of the adoption of the state constitution and certainly it does not now exist.
The majority decision ignores the opinion of this court in Hageman v. Vanderdoes, 15 Ariz. 312, 138 P. 1053, 1057, L.R. A. 1915A, 491, which involved the common-law rule that a husband is liable for the torts of his wife. The court said in that case the constitution of Arizona did not abolish this rule of liability or directly recognize its existence. It then sought evidence of its adoption from statutory enactments relating to the respective property rights of husband and wife concerning property acquired both before and after coverture and the necessity of joining the husband in an action against the wife. In the statutes quoted by the court in that case nothing whatever is found therein reláting to or bearing upon the husband’s liability or nonliability for the torts of his ■wife. Notwithstanding-this fact the court .concluded that the husband was not liable for the torts of his wife based upon the *292fact that we did not adopt the common law fixing such liability upon the husband. The court said as a prelude to its conclusion :
“The disabilities of the wife resulting from the marriage state, as known to the common law, have never been recognized by the lawmaking power of Arizona in their entirety, because, doubtless, that power has considered that all of the common-law disabilities of married women are not applicable to the conditions and necessities of the people of Arizona. * * * ”
It also' ignored Kleemann v. Sheridan, 75 Ariz. 311, 256 P.2d 553, in which this court by its decision without any statutory aid whatever repudiated the common-law technical rule requiring the four unities of time, title, interest and possession as being necessary to create a joint tenancy and stated that such requirements must give way to the intention of the parties. In so doing we aligned this court with the majority.of courts in the United States.
We did not adopt the common law in totó as section 1-106, supra,' clearly indicates. Nor do the decisions indicate its adoption in its entirety.
I believe a proper construction of both our constitutional and statutory provisions justifies the view that the common-law maxim; supra, was repudiated rather than adopted by the 1'awma'kers of both the territory and state of Arizona. Article 18, § 6 of our constitution provides that:
“The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.”
Article 2, § 31 of the constitution entitled “Damages for personal injuries” provides that :
“No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.”
At the time of the adoption of our constitution the right to recovery for personal injuries had been well established in all the 46 states of the Union. The framers of the Arizona Constitution must have •been well aware of that fact. It appears to me to be more logical to interpret those sections of the constitution as a denial of the common-law maxim “actio personalis, etc.” as a part of the law of Arizona than •that it became imbedded in our constitution as held by this court in the McClure case- supra. This certainly seems sound in the light of the provisions of section 1-106, supra, in existence since 1885 which adopted only so much of the common law as is consistent with the necessities of the people, etc. These provisions of the constitution required no legislative action to carry them ' into effect. They were not only intended-as a limitation upon-the pow*293ers of the legislature to either abrogate the right of action for the wrongful death of a person under any circumstances that may arise or to limit the amount of damages recoverable, but they constitute a clear declaration of the existence of such a right of action created by the language therein employed. By stripping the legislature of the power to either abrogate the right of action for the recovery of damages for personal injuries or to limit the amount of damages recoverable, in my opinion, they clearly repudiated the old common-law rule denying a right of action to an injured person if the wrong-doer dies before action is commenced. The interpretation given to these provisions of the constitution by this court in the McClure case, supra, is unsound and should be overruled. To hold that we adopt the old common-law maxim of nonliability for personal injuries where death ensues is entirely incongruous with the rule of liability in all other personal injury actions. It is irreconcilable with the constitutional provisions, supra, because it abrogates the right to maintain an action for damages where death ensues which the constitution says shall never be .abrogated.
There is another provision of the constitution which I believe has some bearing upon the question here involved. Article 2, § 11 of the Arizona Constitution entitled “Judicial remedies” provides that:
“Justice in all cases shall be administered openly; and without unnecessary delay.”
The entire system of American jurisprudence and philosophy of law is based upon the principle of justice. Does the old common-law rule of “actio personalis, etc.,” comport with the constitutional mandate that justice in all cases shall be administered, etc.? Is it justice where a person is maimed and disabled for life by the wrongful act of another if he is denied redress merely because the wrong-doer dies before he files his action? Whereas if the wrong-doer dies immediately after action is filed redress is afforded him.
It is inconceivable to me that in an enlightened age the pioneer lawmakers of Arizona would have adopted a rule of common law originating more than 500 years ago, at a time when all persons other than royalty were subjects, not citizens; when the wrong was deemed to be against the subject, not against the state; at a time when the reason for the remedy was based upon vengeance rather than upon compensation as above stated. I contend that it would have been more reasonable and logical for the court in the McClure case, supra, to have repudiated the common-law maxim, supra, and adopted the enlightened view which the culture 'and mores of the time not only justified but dictated.
I am of the opinion that a fair interpretation of the constitution clearly indicates a repudiation of the rule; that said rule is repugnant to the constitution and wholly *294inconsistent with the necessities of the people.
The position of the majority members of this court that the correction of this wrong is for the legislature and not for the courts, I believe, to be unsound for the •reason as was stated in Pierce v. Yakima 'Valley Memorial Hospital Ass’n, Wash. 1953, 260 P.2d 765, 774. The court said:
“ * * * having previously undertaken this function (of declaring a public policy), and having now concluded that our court-declared policy is no longer valid, there seems to be no . compelling reason why we must wait for legislative action. We closed our courtroom doors without legislative help, and we can likewise open them. It is not necessary that courts be slow to exercise a judicial function simply because they have been fast to exercise a legislative one. As one writer has said: .
“ ‘The courts which have granted immunity to charitable organizations appear to have usurped the legislative function of declaring public policy and making changes in the law in accord therewith. It would be strange for these same courts to sit back and wait for the legislatures to reverse the value ‘judgments- the courts have made.’ ■ .
* * * * *
“ ‘Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule.’ ”
The adoption of the nonliability maxim of the common law in cases of personal injury where the wrong-doer dies was a court-made rule. It was erroneous and has no foundation either in logic or in justice. In the case of Ray v. Tucson Medical Center, supra, it was pointed out that at the time we adopted the rule of nonliability of charitable institutions for torts, England, by judicial decision, had repudiated the rule. In the instant case at the time we adopted the maxim “actio personalis, etc.,” England had previously repudiated it by legislation. We said in Ray v. Tucson Medical Center, supra, and again in Graham County v. Buhl, 76 Ariz. 275, 263 P.2d 537, that when the reason for a rule no longer existed the rule itself must be discarded. This court should now adopt the enlightened view and repudiate the rule in its entirety.
Inasmuch as this is a minority opinion the views hereinabove' expressed make it ■ unnecessary to discuss other questions raised.
Judgment should be reversed.
LA PRADE, J., concurs.