2018 New Mexico Statutes
Chapter 37 - Limitation of Actions; Abatement and Revivor
Article 2 - Abatement and Revivor
Section 37-2-1 - What causes of action survive.

In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same. The cause of action for wrongful death and the cause of action for personal injuries, shall survive the death of the party responsible therefor.

History: Laws 1884, ch. 5, § 1; C.L. 1884, § 2138; C.L. 1897, § 3087; Code 1915, § 4264; C.S. 1929, § 105-1202; Laws 1941, ch. 79, § 1; 1941 Comp., § 19-701; 1953 Comp., § 21-7-1.

Cross references. — For death of party to pending action, see 37-2-4 NMSA 1978.

For survival and revivor of suit, action or proceeding by or against head of agency or other state officer despite executive reorganization, see 9-1-10 NMSA 1978.

For nonabatement of partition suit on death of tenant, see 42-5-9 NMSA 1978.

For rule concerning substitution of parties, see Rule 1-025 NMRA.

Legislative intent. — Language of this section indicates that the legislature intended the specified causes of action to survive but had no intent concerning nonsurvival of actions under the common-law rule. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619.

Alteration of common law. — While legislative intent was that survival of causes of action not specified in this section depend on the common law, there is no indication of a legislative intent to preserve the ancient common-law rule which existed when the statute was enacted; therefore, the court of appeals could adopt a "new" common-law rule allowing an action to recover damages for personal injuries between accident and victim's unrelated death to survive that death. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619.

Will contest. — An action to contest a will for undue influence by heirs at law of testatrix will survive, although they claimed interest in the estate through their father, and the father died after probate of the will. In re Morrow's Will, 1937-NMSC-090, 41 N.M. 723, 73 P.2d 1360.

Injuries to reputation or privacy. — Libel, slander, defamation and, more recently, invasion of privacy did not survive the death of the injured party at common law, and because they are not mentioned in this section, they do not survive hereunder. Gruschus v. Curtis Publishing Co., 342 F.2d 775 (10th Cir. 1965).

Survival of wrongful death suit formerly. — Prior to the 1941 amendment to this section, cause of action for death, asserted against defendant as personal representative of alleged wrongdoer, a common carrier, did not survive the latter's death irrespective of the statute creating right of action against the carrier, by reason of this survival statute. Ickes v. Brimhall, 1938-NMSC-036, 42 N.M. 412, 79 P.2d 942.

Accrual of cause before death. — Even though cause of action accrues but very short time before death of the wrongdoer, survival results. Cash v. Addington, 1942-NMSC-058, 46 N.M. 451, 131 P.2d 265.

Finding that wrongdoer was "instantly killed" in an automobile collision in which plaintiff was injured does not connote that his death occurred before injury of the plaintiff and evidence was sufficient in particular case to permit supreme court to determine that the decedent lived long enough for cause of action to accrue. Cash v. Addington, 1942-NMSC-058, 46 N.M. 451, 131 P.2d 265.

Effect of order of death. — Under this section, the order of death (e.g., in the case of a husband whose death may have been preceded by that of his wife) is not an element of the plaintiff's case. It is sufficient if the husband's death was occasioned by his wife's otherwise actionable act or neglect occurring while she was still living, even if her death precedes his. Corlett v. Smith, 1988-NMCA-067, 107 N.M. 707, 763 P.2d 1172, cert. denied, 107 N.M. 610, 762 P.2d 897.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 1 Am. Jur. 2d Abatement, Survival and Revival § 53 et seq.

Survival of right to compensation under workmen's compensation acts upon the death of the person entitled to the award, 15 A.L.R. 821, 24 A.L.R. 441, 29 A.L.R. 1426, 51 A.L.R. 1446, 87 A.L.R. 864, 95 A.L.R. 254.

Survival of action or cause of action for wrongful death against representative of wrongdoer, 61 A.L.R. 830, 171 A.L.R. 1392.

Survival of liability on joint obligations, 67 A.L.R. 608.

Survival of cause of action for personal injury or death against tort-feasor killed in same accident, 70 A.L.R. 1319.

Survival of action or cause of action for personal injuries upon death of tort-feasor, 78 A.L.R. 600.

Assignability or survivability of cause of action to enforce civil liability under securities acts, 133 A.L.R. 1038.

Survival of action or cause of action for wrongful death against representative of wrongdoer, 171 A.L.R. 1392.

Liability or additions to deficiencies for fraud, imposed by income tax laws, as surviving taxpayer's death, 15 A.L.R.2d 1036.

Fingerprints, palm prints, or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R.4th 1178.

Claim for negligently damaging or destroying personal property as surviving tort-feasor's death, 40 A.L.R.2d 533.

Statutory liability for physical injuries inflicted by animals as surviving defendant's death, 40 A.L.R.2d 543.

Who may enforce guaranty, 41 A.L.R.2d 1213.

Medical malpractice action as abating upon death of either party, 50 A.L.R.2d 1445.

Death as terminating coexecutor's, coadministrator's or testamentary cotrustee's liability for defaults or wrongful acts of fiduciary in handling, 65 A.L.R.2d 1126.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.

Survivability of cause of action created by civil rights statute, 88 A.L.R.2d 1153.

Survival of cause of action under Civil Damage Act, 94 A.L.R.2d 1140.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Defamation action as surviving plaintiff's death, under statute not specifically covering action, 42 A.L.R.4th 272.

When is death "instantaneous" for purposes of wrongful death or survival action, 75 A.L.R.4th 151.

1 C.J.S. Abatement and Revival §§ 130, 131.