Maiuri v. Sinacola Construction Co. , 382 Mich. 391 ( 1969 )

382 Mich. 391 (1969) 170 N.W.2d 27

MAIURI
v.
SINACOLA CONSTRUCTION COMPANY.

Calendar No. 17, Docket No. 52,104.

Supreme Court of Michigan.

Decided September 3, 1969.

Metry, Metry, Sanom, Ashare & Goldman, for plaintiffs.

Robert E. Fox, for defendant.

PER CURIAM:

On July 30, 1964, Albert D. Maiuri, the 24-year-old unmarried son of plaintiffs, while working for defendant, Sinacola Construction Company, in a 27-foot deep trench, died from injuries sustained when a chunk of earth fell and crushed his skull. At the time of death, Sinacola was subject to the provisions of the Michigan workmen's compensation act. Plaintiffs, his parents, did not qualify as dependents within the meaning of that act.

Plaintiffs made application for hearing and adjustment of claim with the workmen's compensation department. They received a $500 statutory burial allowance. Eventually their application was dismissed at the request of plaintiffs' counsel.

On July 29, 1966, plaintiffs commenced this action under the wrongful death act for the death of their son, the loss of companionship and services. Accelerated judgment of no cause for action was entered on October 17, 1966. The trial court was affirmed on June 25, 1968 by the Court of Appeals, 12 Mich. App. 22. We granted leave to appeal on August 20, 1968. 381 Mich. 772.

We affirm the trial court and the Court of Appeals.

1. What was formerly the wrongful death act is now incorporated into the revised judicature act (CLS 1961, 600.2922, as amended; Stat Ann 1969 Cum Supp § 27A.2922), and in part provides:

"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person." (Emphasis added.)

This action was brought by Pasquale Maiuri and Amelia Maiuri, husband and wife, parents of the deceased, in their individual capacities, not as representatives of their son's estate. The language of the statute is mandatory. The plaintiffs' action must fail because they are improper parties. Burns v. Van Laan (1962), 367 Mich. 485.

2. Even if this action has been brought by the personal representative of the deceased's estate, under the facts of this case, the action could not be maintained. It is undisputed that Albert D. Maiuri at the time of his death was an employee of Sinacola Construction Company and that he died as the result of an injury arising out of and in the course of his employment. If death had not ensued, his only claim would have been against the defendant for compensation under the workmen's compensation act. For a discussion, see Jordan v. C.A. Roberts Company (1967), 379 Mich. 235, on rehearing (1968), 381 Mich. 91. "Where the conditions of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive remedy against the employer." CL 1948, § 411.4 (Stat Ann 1968 Rev § 17.144).

The wrongful death act, as it appears in RJA, in part provides:

"Sec. 2922. (1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section." (Emphasis added.)

The present wrongful death act is an amalgamation of the remedies previously existing under the wrongful death and survival acts.^[1] It came about due to difficulties which had arisen under the previous acts as to the remedy if death resulted but was not known to have been instantaneous.^[2] Where the injuries result in death, survival and wrongful death actions now, by direction of the legislature, are to be brought under the wrongful death act. As a condition to a successful action under the wrongful death act, it must be shown that the decedent, if death had not ensued, could have maintained an action and recovered damages for his injuries (RJA § 2922[1]). This is true even though the wrongful death act creates a new cause of action permitting recovery for the benefit of certain persons who had sustained pecuniary injury as a result of the decedent's death. The language of the statute requiring that the decedent must have been able to maintain the action, "if death had not ensued," has remained in the act throughout its legislative history.^[3]

In Lincoln v. Detroit & M.R. Co. (1914), 179 Mich. 189, Justice STONE undertook to explain the meaning of the clause, "if death had not ensued." In that case he wrote (p 196):

"The language of our statute (CL 1897, § 10427) is that liability of the wrongdoer exists where the deceased could have recovered, if death had not ensued."

See, also, Justice STONE'S quotation from Cooley on Torts, at pp 197, 198.

In the case of Mehegan v. Boyne City, G. & A.R. Co. (1913), 178 Mich. 694, an action for wrongful death was brought by the plaintiff, as administratrix of the estate of James E. Mehegan, deceased. The defendant owned and operated a railroad upon which the deceased met his death. The deceased, an employee of another corporation, and his wife, had executed a release of liability to the defendant for any injury he might sustain while riding upon a motor car of his employer operated over defendant's rails. This Court found the contract and release to be valid. The opinion states:

"The language of the statute suggests very clearly that if the husband would not have a cause of action had he survived the injuries his widow and child would not have one."

Since the cause of action of a proper plaintiff under the wrongful death act is a derivative one in that the personal representative of the deceased stands in his shoes and is required to show that the deceased could have maintained the action if death had not ensued, and since, in this case, the decedent would have been barred from an action for injuries resulting in death because of the exclusive remedy provisions of the workmen's compensation act, the trial court did not err in granting an accelerated judgment for the defendant. The trial court and the Court of Appeals are affirmed, with costs to defendant-appellee.

T.E. BRENNAN, C.J., and DETHMERS, KELLY, T.M. KAVANAGH, ADAMS, and T.G. KAVANAGH, JJ., concurred.

BLACK, J., concurred in the result.

NOTES

[1] The survival act now appears as section 2921 of the revised judicature act (CLS 1961, § 600.2921 [Stat Ann 1962 Rev § 27A.2921]). It provides in part:

"Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section." [Wrongful death section.] Bracketed material added.

[2] In Jorgensen v. Grand Rapids & Indiana Ry. Co. (1915), 189 Mich. 537, 541, this Court in summary of the law and practice of this State commented that the death act was applicable only to cases of instantaneous death; where death was not instantaneous the action should be brought under the survival act; but both rights of action, for the same injury, cannot exist at the same time.

See, also, Sweetland v. Chicago & Grand Trunk R. Co. (1898), 117 Mich. 329; Dolson v. Lake Shore & M.S.R. Co. (1901), 128 Mich. 444; Jones v. McMillan (1901), 129 Mich. 86.

[3] The Michigan wrongful death act was first enacted in 1848. Laws of Michigan, 1848. No 38. It was similar to "Lord Campbell's act" which had been adopted in England in 1846. The wording of the original Michigan act is set forth in full in Lincoln v. Detroit & M.R. Co. (1914), 179 Mich. 189, at 198, 199, and it will be seen that the above-quoted phrase appears in section 1. This section was amended by PA 1939, No 297, but the pertinent language remained unchanged and was incorporated into the Compiled Laws of 1948 in § 691.581 (Stat Ann 1959 Cum Supp § 27.711) which section was repealed by the revised judicature act, PA 1961, No 236, § 9901 (CLS 1961, § 600.9901, Stat Ann 1962 Rev § 27A.9901).