Hogan v. Hermann , 101 Idaho 893 ( 1980 )

McFADDEN, Justice.

ON REHEARING

Respondents E. J. Hogan and Katherine Hogan brought this action to recover for the wrongful death of their 26 year old married daughter, Carol Jean McGrath. The deceased was killed April 14,1972, near Moscow, Idaho, in an automobile collision between her vehicle and a vehicle owned by appellants Charles and Evelyn Hermann and driven by their 15 year old son, Joey Hermann. Carol Jean McGrath died without issue but was survived by her parents and by her husband, Stephen J. McGrath.

In November 1972 an action was filed by Stephen J. McGrath against appellants for the wrongful death of his wife. The complaint alleged that he was the surviving husband of the deceased but made no mention of any additional surviving heirs. Thereafter, upon suggestion from Hermann’s counsel, the complaint was amended to allege that Stephen J. McGrath was the “surviving husband and sole and only heir of Carol Jean McGrath.” The case proceeded and was set for jury trial on April 16, 1973.

On April 13, 1973, Stephen J. McGrath’s attorneys confronted Hermann’s attorney with information they had discovered while doing legal research on the case which they believed would facilitate a settlement. McGrath’s attorneys disclosed that the deceased had parents living who were in the respondents’ opinion, heirs under the statute [see discussion infra] and therefore also entitled to recover for the wrongful death of Carol McGrath. McGrath’s attorneys were also the attorneys for the parents, and they had been authorized to settle the parents’ claim as well as the husband’s claim. A settlement figure for both claims was then given to Hermann’s attorney, but this figure was rejected.

Following these discussions, and prior to trial, settlement of Stephen J. McGrath’s claim was reached and his release was given. The release, drafted by the Hermann’s attorney, expressly and unequivocably constituted an individual release by Stephen J. McGrath alone. The release did in no way refer to the Hogan’s claim, nor did it provide that Stephen J. McGrath was settling the action on behalf of all potential claimants. Nor did it provide or suggest that the settlement recovery was held by McGrath in trust for the Hogan’s benefit. McGrath’s action was thereafter dismissed with prejudice.

The instant action was filed June 19, 1973, some two months after the dismissal of Stephen J. McGrath’s case. The Hogans alleged that they were surviving heirs, entitled to bring the action under I.C. § 5-311. They sought damages for the loss of their daughter’s services, society, and companionship.

Appellants filed a motion to dismiss the complaint on grounds that it failed to state a claim for relief and that the action was barred by reason of the earlier settlement and release of Stephen J. McGrath’s claim and dismissal of his suit. The motion was supported by the affidavit of appellants’ attorney which basically recited the facts given in the above portion of this opinion. The affidavit also stated that “no settlement of the claim of the parents of Carol Jean McGrath as a separate claim from the claim of Stephen J. McGrath, was made for the reason that defendants [appellants] considered the settlement that was made to be determinative of the claims of all the heirs of Carol J. McGrath.” This statement was made in contradiction of the language of the actual release, which consisted solely of a settlement of McGrath’s individual claims. Respondents’ attorney then filed his affidavit in opposition to the motion, stating that the “negotiations resulted in an understanding between the attorneys representing all parties that the claim of Stephen J. McGrath would be settled for him alone without prejudice to the right of the parents of the decedent to initiate their independent action for her death .... ”

The district court denied appellants’ motion to dismiss the action. The court concluded that the Hogans were heirs of the deceased and therefore entitled to maintain the action. Appellants were ordered to answer the complaint.

By way of answer, appellants denied that the Hogans were surviving heirs and raised as affirmative defenses the same grounds as had been raised in the motion to dismiss: that the complaint failed to state a claim for relief, and that the Hogans were barred from bringing the action because of the prior settlement. Appellants also filed a third party complaint against Stephen J. McGrath, alleging that he held the previously obtained settlement monies in trust for all heirs and seeking to recover over from him any judgment which the Hogans might be awarded.

Respondents moved to dismiss the third party complaint and to strike the affirmative defenses and denial of heirship from appellants’ answer. Additional affidavits restating the substance of the earlier affidavits were filed by both sides and a hearing was held on the motion.

The district court granted the respondents’ motion in all respects. The motion to dismiss the third party complaint was treated in effect by the court as a motion for summary judgment, and was granted. In accordance with I.R.C.P. 54(b), the court expressly determined that there was no just reason for delay in entering judgment on the claim, and thereafter entered judgment of dismissal with prejudice of the third party complaint. Appellants timely filed their notice of appeal from that judgment. Appellants subsequently filed in this court a motion for certification of appeal from the interlocutory orders of the district court denying appellants’ earlier motion to dismiss and granting respondents’ motion to strike portions of appellants’ answer. By order of this court, these interlocutory orders were certified for appeal and were consolidated for review with the appeal from the summary judgment dismissing the third party complaint.

The first issue raised by appellants is whether the Hogans, as surviving parents, are heirs of the decedent Carol Jean McGrath. Appellants argue: (1) that I.C. § 5-311 permits only the heirs (or personal representative on their behalf, which is not the case here) to bring an action for wrongful death; (2) that under the new Idaho probate code, I.C. § 15-1-201(21) “heirs” mean those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent; (3) that parents are not entitled under I.C. §§ 15-2-102 or 103 to the property of the decedent unless she died possessed of a separate estate in excess of $50,000; (4) that absent the allegation of a separate estate in excess of $50,000 the complaint does not state a claim for relief; (5) that the trial court therefore erred in denying appellants’ motion to dismiss the complaint and in ordering appellants’ denial of heir-ship struck from the answer.

Whatever the merits of this argument might be for wrongful deaths arising since the effective date of the new Idaho probate code, we express no opinion. Rather we confine ourselves and this opinion to the statutory intestate distribution scheme in effect at the date of death, the time when the right of action for wrongful death arose.

The accident and date of death occurred April 14, 1972. The legislature in enacting the probate code provided that: “(a) This code shall be in full force and effect on and after July 1,1972 .... [But] (4) an act done before the effective date in any proceeding and any accrued right is not impaired by this code.” Session Laws, 1972, ch. 201, § 28, p. 534 (Emphasis added). Since the right to bring the wrongful death action accrued as of the date of death, Russell v. Cox, 65 Idaho 534, 148 P.2d 221 (1944); Whitley v. Spokane Ry. Co., 23 Idaho 642, 132 P. 121 (1913) aff’d 237 U.S. 487, 35 S.Ct. 655, 59 L.Ed. 1060; S. Speiser, Recovery for Wrongful Death, § 11:10 (2d ed. 1975); 22 Am.Jur.2d Death § 40 (1965); 97 A.L.R.2d 1151, 1154 § 3 (1964), we must look to the statutes in effect on that date to determine whether the surviving parents are heirs of the decedent.

The intestate distribution statute in effect on April 14,1972 was I.C. § 14-103. It provided that

“14-103. Succession to property.— When any person having title to any estate not otherwise possessed limited by marriage contract, dies without disposing of the estate by will, it is succeeded to, and must be distributed, unless otherwise expressly provided in this code, subject to the payment of his debts, in the following manner:

“2. If the decedent leaves no issue, the estate goes, one-half to the surviving husband or wife, and the other half to the decedent’s father and mother in equal shares, and if either be dead, the whole of said half goes to the other. If the decedent leave no issue, nor husband, nor wife, the estate must go to his father and mother, in equal shares, or if either be dead, then to the other.”

This court has held that under this statute the parents and surviving spouse are heirs of a decedent in the event there are no issue. Russell v. Cox, supra; Whitley v. Spokane Ry. Co., supra.

We therefore hold that under the law in effect at the time the right of action accrued the Hogans were heirs of the decedent. The district court so ruled, and its orders denying appellants’ motion to dismiss and striking the denial of heirship from the answer are affirmed.

The next issue concerns the effect of the earlier action brought by McGrath and of appellants’ settlement of McGrath’s individual claims.

I.C. § 5-311 provides that “[w]hen the death of a person ... is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death .... ” (Emphasis added.) This language in and of itself would suggest that if the action is not brought by the personal representative of the decedent, then all heirs must join or be joined together to prosecute one wrongful death action.

Other jurisdictions have usually construed wrongful death statutes as authorizing but one joint and indivisible action in which all the damages for the benefit of all the potential beneficiaries shall be recovered. The cases hold that separate actions usually cannot be maintained by the several beneficiaries entitled under the acts. Cross v. Pac. Gas and Electric Co., 60 Cal.2d 690, 36 Cal.Rptr. 321, 388 P.2d 353 (1964); Perkins v. Robertson, 140 Cal.App.2d 536, 295 P.2d 972 (1956); Nelms v. Bright, 299 S.W.2d 483 (Mo.1957); Colgate-Palmolive-Peet Co. v. Perkins, 48 S.W.2d 1007 (Tex. App.1932); S. Speiser, supra at § 11:42; 25A C.J.S. Death §§ 33(1), 57 (1966).

In Whitley this court held, 23 Idaho at 654, 132 P. at 124, that

“We agree . . . that, as a general rule, these actions cannot be split up and one action be prosecuted by one heir and another action by another heir, or one action by the personal representatives of the deceased and another action prosecuted by the heirs, provided the question or objection is timely raised in a proper manner. (St. Louis S. M. & S. Ry. Co. v. Needham, [8 Cir.], 52 Fed. 371, 3 C.C.A. 129; McBride v. Berman, 79 Ark. 62, 94 S.W. 913; Whelan v. Rio Grande R. R. Co., 111 F. 326; Salmon v. Rathjens, supra, 152 Cal. 290, 92 P. 733; Copeland v. City of Seattle, supra 33 Wash. 415, 74 Pac. 582, 65 L.R.A. 333; Galveston H. & S. A. R. Co. v. Kutac, supra, 72 Tex. 643, 11 S.W. 127).” (Emphasis added.)

The emphasized portion of the quotation from Whitley is fundamental to the resolution of this issue. It means at the least that the defendants can waive the benefits of the single action general rule. As said by the Supreme Court of Georgia in Southeastern Greyhound Lines v. Wells, 204 Ga. 814, 51 S.E.2d 569, 569-570 (1949),

“While the law requires, with certain exceptions, that a plaintiff bring his action for his full claim against the defendant, nevertheless this requirement, being primarily for the benefit of the defendant, may be waived by him, and the same rule applies regardless of whether the action is. ex contractu or ex delicto. [Citations omitted.]

“[T]he eleven children originally had a single cause of action under the Code, § 105-1302, for the negligent killing of their father. However, when the defendant company settled the claims of six of the children, it thereby waived the rule against splitting a cause of action. Accordingly, the six children who signed a release were not necessary parties in a suit by the other five since they had no interest in the result of the suit. It follows that an action would lie in the other five children for their proportionate part of the value of their father’s life, and the petition was not subject to any of the grounds of demurrer urged by the defendant.”

In the instant case appellants knew of additional, non-party heirs at the time they settled with McGrath. By voluntarily electing to settle an action with one heir at this time, with full knowledge of other non-party heirs, appellants thereby waived the right to insist upon a single action joined in by all heirs. Southeastern Greyhound Lines v. Wells, supra; Lynn v. Wagstaff Motor Co., 126 Ga.App. 516, 191 S.E.2d 324 (1972); 40 A.L.R.3d 108, 111 (1971). See also Harshbarger v. Rankin, 50 Idaho 24, 293 P. 327 (1930). The settlement with McGrath was limited to his claims only, and it does not constitute a bar to this action by the Hogans; clearly, however, the terms of the release and the dismissal of his action with prejudice bars McGrath’s participation in a recovery under the Hogan action.

The final issue is whether Stephen J. McGrath holds his personal settlement recovery in trust for the benefit of the Hogans. The third party complaint alleges such a trust relationship, and prays for judgment against McGrath for any sums the parents might recover in their action. The district court granted summary judgment in favor of McGrath on the third party complaint.

The settlement with McGrath was made when appellants had full knowledge of other potential claimants. The release, drafted by appellants’ counsel, relates solely to McGrath’s personal damages suffered by the death of his wife. The cover letter (accompanying the release) sent by appellants’ counsel to McGrath’s counsel states: “[a]s you will note, the release relates only to this suit and Stephen McGrath’s claim. Because of this, and since Mrs. McGrath’s parents were not parties to the suit, I did not feel it necessary to mention their names or to refer to them in any way.” No trust relationship is expressed or implied therein.

The summary judgment dismissing with prejudice the third party complaint is therefore affirmed. The interlocutory orders denying appellants’ motion to dismiss the complaint and striking portions of the answer are also affirmed. Costs to respondents.

DONALDSON, C. J., and SHEPARD, J., concur.