Lompre v. Venetjoki , 76 Mich. App. 521 ( 1977 )

76 Mich. App. 521 (1977) 257 N.W.2d 151

LOMPRE
v.
VENETJOKI

Docket No. 27517.

Michigan Court of Appeals.

Decided July 6, 1977.

Wisti & Jaaskelainen (by James F. Tercha), for plaintiffs.

McLean & McCarthy, for defendants.

Before: R.M. MAHER, P.J., and M.F. CAVANAGH and D.F. WALSH, JJ.

R.M. MAHER, P.J.

Plaintiffs appeal from an order granting summary judgment under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted. We reverse.

Plaintiff Robert Louis Lompre first brought a wrongful death action against defendants in March, 1974. The trial court granted summary judgment for defendants and this Court affirmed, Lompre v Venetjoki, 63 Mich. App. 265; 234 NW2d 664 (1975), because Robert Louis Lompre, as special administrator of Noah Lompre, a disappeared person, MCLA 705.29; MSA 27.3178(349), did not have authority to bring an action under the wrongful death statute, MCLA 600.2922; MSA 27A.2922. Pursuant to a stipulation between the parties, this Court remanded this action to permit the administrator of the estate of Noah Lompre, a deceased person, to bring an action for wrongful death against defendants. An amended complaint, in which Robert Louis Lompre, as special administrator of the estate of Noah Lompre, a deceased person, sought recovery against defendants for Noah Lompre's wrongful death, was filed below after remand from this Court.^[1] Objecting to the amended complaint on the grounds that it failed to state a claim upon which relief could be granted, defendants sought and obtained summary judgment.

A motion for summary judgment brought under GCR 1963, 117.2(1), merely tests the legal sufficiency of the claim as determined from the pleadings alone. Todd v Biglow, 51 Mich. App. 346, 349; 214 NW2d 733 (1974), lv den, 391 Mich. 816 (1974), 1 Honigman & Hawkins, Michigan Court Rules Annotated, Committee Notes to GCR 1963, 117, pp 353-355. For the purposes of that motion, both at the trial and appellate levels, every well-pled allegation in the complaint is assumed to be true. Bielski v Wolverine Insurance Co, 379 Mich. 280, 283; 150 NW2d 788 (1967). The test is whether the plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Crowther v Ross Chemical & Mfg Co, 42 Mich. App. 426, 431; 202 NW2d 577 (1972).

Plaintiffs' amended complaint alleged that Noah Lompre, under the care of defendants at the Covington Rest Home, wandered away from the home in August, 1973 and has not been heard from since then. It alleges that defendants were negligent in allowing Noah Lompre to disappear and also that this negligence "undoubtedly caused the death of Noah Lompre".

Plaintiffs have alleged all the elements of a cause of action for wrongful death. Defendants do not point to any element lacking, but instead argue the impossibility of proof. While it is obvious that plaintiffs will have a difficult time sustaining their burden of proof, especially in establishing the necessary causal connection between the alleged negligence of defendants and the death of Noah Lompre, plaintiffs' ability to prove their allegations is not tested by a motion for summary judgment under GCR 1963, 117.2(1).

Circumstantial evidence may be used to establish both death, e.g. John Hancock Mutual Life Insurance Co v Moore, 34 Mich. 41 (1876); Sackett v Metropolitan Life Insurance Co, 260 Mich. 466; 245 N.W. 499 (1932), and its cause, People v Miller, 231 Mich. 273; 203 N.W. 862 (1925); People v Berles, 30 Mich. App. 716; 186 NW2d 852 (1971).

Plaintiffs should be allowed to present to the trier of fact whatever evidence they have to support the claim of wrongful death.

Reversed and remanded.

D.F. WALSH, J., concurred.

M.F. CAVANAGH, J. (dissenting).

I disagree with the majority's conclusion that the trial court's grant of summary judgment was improper. The complaint is conjectural and therefore fails to state a claim upon which relief can be granted.

Paragraph 5 of Count I of plaintiffs' complaint states:

"That, as a result of the wrongful conduct of Defendants, Noah Lompre undoubtedly experienced pain, suffering, mental anguish, shock, mortification, and lost companionship of his next of kin and further that the wrongful conduct of the Defendants undoubtedly caused the death of Noah Lompre." (Emphasis added.)

The second paragraph of Count III states:

"2. That, beyond a reasonable doubt and more probably than not, the conduct of the Defendants have proximately caused the death of Noah Lompre." (Emphasis added.)

I cannot agree that "undoubtedly", "beyond a reasonable doubt", and "more probably than not" are terms which "state" a claim. I would affirm.

NOTES

[1] Since plaintiffs' brief indicates that counts I and II of their amended complaint have been all but abandoned, and it offers no support for reversing the summary judgment as to these counts, we treat this appeal as only questioning the summary judgment on the wrongful death count (count III).