I concur.
The opinion of the court is sound and I am in complete agreement with it. My only concern is with the issue to be faced by the trial court on remand: whether to apply comparative negligence principles to a wrongful death action.
Since this matter will be retried in the post-Zi milieu (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]) the trial court is likely to feel bound by the prevailing view that the decedent’s negligence is to be considered in defense of a wrongful death action. Under those circumstances application of comparative negligence will soften the harsh impact of contributory negligence. Nevertheless I suggest that the time is ripe for a reexamination of the authorities which have heretofore permitted the decedent’s negligence to be a defensive factor in an action for wrongful death.
For the first half of this century trial courts blindly accepted the theory that the contributory negligence of a decedent automatically barred recovery by the heirs in a wrongful death action. In 1954 Judge Paul Nourse wrote a provocative law review article challenging the concept and pointing out that no appellate court had explored the reasons underlying the rule. (Nourse, Is Contributory Negligence of Deceased a Defense to a Wrongful Death Action? (1954) 42 Cal.L.Rev. 310.)
Within a year thereafter this court per Justice Schauer decided Buckley v. Chadwick (1955) 45 Cal.2d 183 [288 P.2d 12, 289 P.2d 242], with Justice Carter dissenting and Justice Traynor dissenting partially on other grounds. The majority opinion responded to the Nourse article with a flat rejection of his analysis and reaffirmed the previously prevailing rule that negligence of the deceased will bar an action by the heirs for wrongful death.
Buckley did not long escape critical review. The next year (now Judge) Charles H. Phillips published a lengthy law review comment, conceding *637that contributory negligence is now a defense to a wrongful death action but trenchantly asking, “should it be?” (Comment (1956) 29 So. Cal.L.Rev. 344, 345.) The latter query has remained unanswered in any subsequent appellate decision.
Since in the instant matter we do not have the benefit of a presentation in depth by counsel, I shall neither discuss the issue at length nor reach any firm conclusion. I merely point out that the matter is not free of doubt.
It must be remembered that at common law all personal tort claims died with either the victim or the tortfeasor. The action for wrongful death is purely a creature of statute, originating in California in an act passed in 1862 (now Code Civ. Proc., § 377) and patterned after Lord Campbell’s Act adopted in 1846. (See Justus v. Atchison (1977) 19 Cal.3d 564, 572-575 [139 Cal.Rptr. 97, 565 P.2d 122].) As Justice Coleridge pointed out in interpreting the latter, the wrongful death action does not effect a survival of the decedent’s cause of action, it “gives to the representative a totally new right of action, on different principles.” (Blake v. The Midland Railway Company (Q.B. 1852) 118 Eng.Rep. 35, 41.)
In the totally new right of action, it has been held that the heirs cannot recover for the decedent’s pain and suffering prior to his death (Parsons v. Easton (1921) 184 Cal. 764, 770 [195 P. 419]; Bond v. United Railroads (1911) 159 Cal. 270, 277 [113 P. 366]) or as an element of wrongful death the medical expenses he incurred in treating his injuries (Salmon v. Rathjens (1907) 152 Cal. 290, 301 [92 P. 733]; Nitta v. Haslam (1934) 138 Cal.App. 736 [33 P.2d 678]). Courts have meticulously limited the damages of the heirs to their own loss.
Since the issue is not the injury sustained by the decedent but only the damages suffered by the heirs, a legitimate question emerges as to whether the conduct of the -decedént should be a defense to the action brought by the heirs. Certainly it cannot be said in the words of Civil Code section 1714, the statutory definition of contributory negligence (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 821), that the widow and minor children of a man killed by the negligence of another have in whole or in part “willfully or by want of ordinary care, brought the injury” upon themselves. It appears that even the majority in Buckley had some fleeting reservations, for they declared that whether they viewed “the origin of the contributory negligence rule in wrongful death cases as being sound in law and reason or as being questionable in both, the rule *638itself has emerged as progenerate in its own right.” (45 Cal.2d at p. 199.) I suggest that reverence for stare decisis does not compel blind adherence to a rule questionable in law and reason merely because of its uncritical repetitive application.
To allow contributory or comparative negligence as a defense to the action brought by the heirs is to impute the decedent’s negligence to the heirs. Yet we have abandoned the doctrine of"imputation of negligence in other circumstances when the allegedly negligent party dies. Flores v. Brown (1952) 39 Cal.2d 622 [248 P.2d 922], is an example. Previously the negligence of a deceased husband was imputed to the surviving wife and would bar recovery by her for her own injuries or the wrongful death of a minor child. Justice Traynor in Flores observed that “When the husband is dead, not only is the reason for the rule imputing his negligence to his wife gone, but to apply it defeats its own purpose. It is but a windfall to a defendant who negligently injures a wife or causes the death of a minor child that recovery may be barred because the wife’s husband was also negligent.” (Id. at p. 632.)
In sum, it is clear that wrongful death legislation was designed to afford a remedy not available at common law for damages the heirs suffer in their own right. It is unrelated to the damages that were suffered by the decedent prior to his death. Any rationale is suspect that permits consideration of the conduct of the deceased to reduce or defeat the independent damages suffered by the heirs.
I concede that Buckley v. Chadwick, decided by a divided court, has been the prevailing authority over the past two decades. But as our principles of negligence have been undergoing significant revision pursuant to Li, it appears appropriate to reconsider Buckley, both its majority opinion and the provocative dissent of Justice Carter (45 Cal.2d at p. 203 et seq.). With adequate presentation by counsel and thoughtful reflection on this issue, we may well conclude to be guided by the principle embodied in Civil Code section 3510: “When the reason of a rule ceases, so should the rule itself.”
Bird, C. J., concurred.