¶1Dissenting. I dissent. I entertain no doubt concerning the power of the trial court to enter a judgment nunc pro tunc in so far as it provides for compensatory damages, but it must be remembered that exemplary damages are imposed for the purpose of punishment. In 8 California Jurisprudence, section 106, it is said: “Punitive damages have no compensatory character. They amount only to a punishment or fine which the law says ought to be imposed in certain cases, and which it has been observed, is somewhat in analogy to the action of qui tam, goes to the party who has been injured and has brought the suit.” To the same effect is the definition of this court in the case of Pacific etc. Co. v. Alaska Packers Assn., 138 Cal. 632 [72 Pac. 161], as follows: “ . . . [P]unitive damages are given as a punishment beyond what a plaintiff has actually suffered. ...” It follows that the court should not have included in the judgment any sum by way of exemplary damages because it was not proper or just to attempt to punish the defendant after his demise.
¶2It is not solely a question of jurisdiction or whether the court had the power to enter a judgment nunc pro tunc, but also a question of whether it was just and right after the defendant Gibson’s death to assess a fine against him. We have held that punitive damages .may not be recovered against personal representatives, but by sustaining the inclusion within the judgment of punitive damages we are doing indirectly that which we refuse to permit directly. Such does not comport with my idea of justice. It would be a different question had the decision been announced before the death of the defendant—but after his death was made to appear of record the fine should not have been levied. The judgment should be modified accordingly.
¶3Preston, J., concurred.
¶4Rehearing denied.
¶5Preston, J., and Thompson, J., voted for a hearing.