In this state the recoverability of punitive damages in a death case depends upon whether the decedent became such instantaneously or less quickly. The magic is in determining whether the victim had “a cause of action” (Prob. Code, § 573) before he died: if he did, it survives together with a punitive measurement of damages.1 In short, a malicious actor is subject to such punishment when he harms property, when he causes personal injury or nonimmediate death, but not when he dispatches you straightaway.
*754The facts of this case highlight some of the unusual mechanics of the rule. The Ford Pinto immediately burst into flames when struck from the rear. Terrance Canady, whose passenger door was jammed by the impact, was burned to death. The driver, Jerry O’Neal, escaped without serious physical injury. Ford Motor Company’s conduct in creating and marketing a type of vehicle with known dangerous propensities was the basis for the claim for punitive damages. Terrance’s heirs may not recover a punitive award against Ford although Jerry O’Neal, the driver who was sitting no more than two feet from Terrance at the moment of impact, may seek such damages along with his personal injury claim.
The contention of the lead opinion is that distinguishing between the heirs of a person whose instantaneous death was maliciously caused by a tortfeasor and the heirs of a person whose more gradual demise was similarly produced does not deny equal protection of the laws. Two “rational bases” are suggested to justify the distinction.
First we are told that “apparently” the Legislature feared recovery would be excessive in cases involving death. This is not apparent at all. There is no legislative history whatsoever to support the belief the lawmakers had any concern for the so-called danger of excessive recoveries in death cases.* 2 If they had such worries there would be no reason to allow survivors of a person who died slowly to recover punitive damages. A slow death is also a death case.
The only other justification offered by the single member lead opinion is the pronouncement that the purposes of punitive damages are best served when the tortfeasor must pay them “to the victim personal*755ly.” My guess is that the wrongdoer is punished and deterred pretty well by the pain of paying someone. The Legislature thinks so too, since it allows an executor to recover punitive damages in survival actions. (See, Prob. Code, § 573.)
It is anomalous at best to uphold a statute as resting on two rationales (“rational basis”) each of which has been explicitly rejected by the Legislature.3
I would deny the petition and discharge the alternative writ because the trial court was acting as mandated by the equal protection clauses of both the California and United States Constitutions in overruling the demurrer to the third cause of action.
The petition of real parties in interest for a hearing by the Supreme Court was denied September 16, 1981. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
Observers not constrained by Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937], have characterized the judicial interpretation of the statutes involved as “a classic example of a priori judicial reasoning and the strangle-hold ancient rubric possesses” involving a court “which totally closed *754its eyes .... ” (McClelland & Truett, Survival of Punitive Damages in Wrongful Death Cases (1974) 8 U.S.F. L.Rev. 585, 605-606, fns. 73 and 75.)
More flowery comment comes from the federal bench: “Ultimately and graphically this litigation points up the absurdity of the discriminatory classification that has been countenanced in California. If these same plaintiffs were in a position to prove as a practical reality personal injuries and/or property damage experienced by their decedents the entire question of punitive damages with which we have struggled would have been obviated. They could—through estate distribution under P.C. § 573—without question recover the same punitive damages they now claim in a different capacity. Is not a rose still a rose?” (In re Paris Air Crash (C.D.Cal. 1977) 427 F.Supp. 701, 709, revd. in In re Paris Air Crash (9th Cir. 1980) 622 F.2d 1315, cert. den. 449 U.S. 976 [66 L.Ed.2d 237, 101 S.Ct. 386]; italics in original.)
Whether such a concern would be based on reason is doubtful. The only California decision reaching the same result confirms there is no empirical data to support such a fear. (Georgie Boy Manufacturing, Inc. v. Superior Court, supra, 115 Cal.App.3d 217, 225, fn. 4 [171 Cal.Rptr. 382].)
It is strikingly odd for the lead opinion to cite the not yet final decision of Grimshaw v. Ford Motor Company (1981) 119 Cal.App.3d 757 [174 Cal.Rptr. 348] for support on the constitutional issue involved here because that decision is highly critical of the cases relied upon in the lead opinion, in particular, Georgie Boy and In re Paris Air Crash. A flavor of Justice Tamura’s logic is caught in: “Neither case, however, analyzes the constitutional issue in terms of the classes of heirs affected by the statutory bar against recovery of punitive damages in wrongful death actions. A statutory scheme which would punish a tortfeasor if he inflicts death-causing injury which does not result in simultaneous death but would not punish if death occurs instantaneously is difficult to explain on the basis of any conceivable, realistic, rational legislative purpose.” (Id. at p. 834.) For those who want more of Justice Tamura’s cooking, careful digestion of his footnote 29 is recommended.