In Re Olney's Estate

At the hour of about 4:30 p.m., on October 14, 1941, John B. Olney, a resident of Grand Rapids, was driving his automobile in a northerly direction on US-23 near Alpena. His wife was riding with him. At the same time, Edwin E. Bennett was driving his automobile on the same highway in a southerly direction. His wife was riding in the front seat with him and one Eunice Hawkins was riding in the back seat. The highway where the automobiles collided is of concrete structure and 22 feet wide. The two automobiles collided near the center of the highway and as a result of the collision, Mr. and Mrs. Olney were severely injured and Mr. Olney died within 24 hours after the collision. Mrs. Bennett was also severely injured and died six days after the accident.

Plaintiff, Edwin E. Bennett, filed a claim in the probate court of Kent county for the following damages and expenses:

"Alpena General Hospital for Margaret B. Bennett $ 82.71 Spens Pharmacy, gangrene serum 3.97 Funeral expenses of Margaret B. Bennett 433.00 Alma Kunz, R.N. for Margaret B. and Edwin E. Bennett 40.00 H.G. Purdy, R.N. for Margaret B. and Edwin E. Bennett 40.00 Madeline B. Martinson, R.N. for Margaret B. and Edwin E. Bennett 41.00 Alpena General Hospital for Edwin E. Bennett 103.35 Wm. F. Carle, ambulance to Alpena 15.00 Frank Doane, wrecker service 12.00 Loss of 1938 4-door Oldsmobile Sedan 600.00 Loss of use of such automobile 100.00 Personal injuries, pain and suffering, disfigurement, permanent injuries, loss of time from business and earning ability of Edwin E. Bennett 5,000.00 ___________ Total ........................................................... $6,471.03"

Plaintiff, Edwin E. Bennett as administrator of the estate of Margaret B. Bennett, filed a claim in the probate court of Kent county for $5,000 for loss of prospective earnings and $5,000 for pain and suffering.

Defendant, administratrix of the estate of John B. Olney, deceased, filed an answer and cross action.

The probate court allowed the claims of plaintiff. Defendant appealed to the circuit court of Kent county. The cases were tried without a jury and a judgment was rendered for plaintiff Edwin E. Bennett, individually, in the amount of $2,540.03 and for plaintiff Edwin E. Bennett, as administrator of his deceased wife's estate, in the amount of $5,000.

Motion for a new trial was denied and defendant appeals. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law; that the judgments are contrary to the great weight of the evidence and are excessive; that the court erred in failing to grant the estate of John B. Olney a judgment on its cross declaration against Edwin E. Bennett; and that under the present death act, the estate of Margaret B. Bennett, deceased, plaintiff, is not entitled to a judgment.

In considering this appeal, we shall first direct our attention to plaintiff's individual claim. The trial court found:

"The evidence conclusively establishes that the accident occurred on the west side of the highway; that claimant, Bennett, was driving on his right (west) side of the road; that the decedent Olney had been previously driving upon his right (east) side of the road and when about 35 feet from the point of impact had commenced to veer to the left, that when about 17 feet from the point of impact the left side of the Olney car crossed the center line of the highway and continued upon that side (the west side) of the road until the collision took place. * * *

"There is no evidence which explains or excuses the violation of the law and the rules of the road by Mr. Olney. The accident was the result of his driving upon his left side, the wrong side, of the highway. * * *

"The claimant, Mr. Bennett, was free from contributory negligence. He was driving upon his own right side of the road where he had the right and duty to be."

In determining the amount of damages to be allowed upon the claim of Edwin E. Bennett, individually, the trial court said:

"(1) Edwin E. Bennett, claimant as an individual, suffered a concussion, contusions on the head and shoulders, lacerations, was in the hospital approximately three weeks and suffered considerable pain during that period and for sometime thereafter and his injuries resulted in a double vision for a period of some two months.

"His bills for doctors, nurses and hospital for himself were $213.32. The bills for doctors, hospital, nurses and funeral expenses for Mrs. Bennett were $721.71. The damage to Mr. Bennett's car was $405, making a total financial loss to Mr. Bennett of $1,340.03.

"The law affords no rule by which damages for pain and suffering may be computed. The determination is not based upon how some person other than the injured person would feel or would suffer. It is determined by the extent of the suffering of the injured person, and where death occurs the injured person is not a witness. A nervous, unduly imaginative, despondent person may suffer more from a slight injury than would a composed, sensible person suffer who has serious injury, is not unduly apprehensive, and who commands a hopeful outlook. Without minimizing the fact of suffering, and having in mind the outcome of certain adjudicated cases, it would appear that the allowance of the sum of $1,200 would be a reasonable sum to be awarded to Mr. Bennett for his item of pain and suffering. This added to $1,340.03, his financial damages, would be $2,540.03, the total amount to be recovered by Mr. Bennett, individually."

A recital of the claims of the parties as to how the collision occurred would add nothing to the value of this opinion nor be of any particular interest to the profession. We have examined the record and in our opinion there is competent evidence to sustain the finding of fact by the trial judge that: "Mr. Olney must be held to have been guilty of negligence which was the proximate cause of the accident." Nor do we find any error in awarding plaintiff a judgment of $2,540.03 for his individual claim and the same is affirmed.

We now consider the issues involved in the claim of the estate of Mrs. Bennett. Decedent Olney died about 12 hours after the accident, while Mrs. Bennett died some five days later.

Defendant contends that under the present death act, so-called (Act No. 38, Pub. Acts 1848, as amended by Act No. 297, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 14061 et seq., Stat. Ann 1943 Cum. Supp. § 27.711 et seq.]), the alleged tortfeasor Olney having predeceased Margaret B. Bennett, no cause of action for her death existed against any "person" at the time of her death; that there can be no cause of action against a corpse; and that no cause of action having existed, none could survive.

Plaintiff contends that a cause of action "for injuries resulting in death" to Mrs. Bennett exists against the estate of the wrongdoer Olney; that under the law of Michigan prior to the 1939 amendment to the death act, a cause of action existed for damages occasioned by a death caused by the wrongdoing of another against the estate of the wrongdoer; that it was not the intent of the legislature by amending the death act to take from families of persons killed by wrongful act of another a cause of action against the estate of the wrongdoer; that the purpose of the amendment was to abolish the distinction between instantaneous death and death following injury; and that there was no intent to change the liability of the tortfeasor.

At common law there was no civil cause of action for the death of a human being caused by the wrongful act or negligence of another, or for damages suffered by any person in consequence of such death. Hyatt v. Adams, 16 Mich. 180. Nor did the common law permit the survival of actions for personal injuries.Dolson v. Railway Co., 128 Mich. 444.

As early as 1838, the legislature provided that in addition to actions which survive by common law, certain others shall also survive. Rev. Stat. 1838, p. 428, pt. 3, title 2, chap. 3, § 7. By Act No. 113, Pub. Acts 1885, an action for "negligent injuries to the person" was included among those actions expressly surviving. This provision now exists in 3 Comp. Laws 1929, § 14040 (Stat. Ann. § 27.684).

In 1848, the "death act," a typical "Lord Campbell's Act" (Act No. 38, Pub. Acts 1848), was passed and has remained unchanged until amended in 1939. Prior to this amendment, section 1 thereof (3 Comp. Laws 1929, § 14061) provided:

"Whenever the death of a person 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."

The interpretation of these acts became well established and is summarized in Ford v. Maney's Estate, 251 Mich. 461 (70 A.L.R. 1315), where the court said:

"Our survival statute, 3 Comp. Laws 1915, § 12383 (3 Comp. Laws 1929, § 14040), reads in part:

"``In addition to the actions which survive by the common law the following shall also survive, that is to say, actions * * * for negligent injuries to persons.'

"The survival is not confined to actions commenced, but applies as well to rights and causes of action. A cause of action for negligent injuries, which accrues in the lifetime of a party, whether person injured or tortfeasor, survives his death.Rogers v. Windoes, 48 Mich. 628; Norris v. Kent CircuitJudge, 100 Mich. 256; Love v. Railroad Co., 170 Mich. 1.

"``When the law declares that a cause of action shall survive, it is equivalent to saying an executor may sue upon it.' Rogers v. Windoes, supra.

"It is also equivalent to saying that the estate of the deceased tortfeasor may be sued upon it. * * *

"The courts are in conflict upon the respective scope and operation of the death act and survival statute. L.R.A. 1915E, 1119, note; L.R.A. 1916C, 973, note. In this State it is held that the death act created a cause of action unknown to the common law, not by way of survival of a right accruing to the deceased which before had abated at this [his?] death, but as a new and special remedy accruing to those who suffered loss by the death; and that the legislature did not intend to give two remedies for death by negligent act, but that the death act and the survival act is each exclusive within its sphere. The line of cleavage between them is whether the death is instantaneous. The legal test of instantaneous death was devised in order to afford a practical working of the statutes, death being seldom instantaneous in fact. The test was established, not in an attempt to bring the acts into harmony with common-law principles but by way of judicial interpretation of legislative intention in the construction of statutes which change the common law and have points of conflict. Sweetland v. Railway Co., 117 Mich. 329 (43 L.R.A. 568); Dolson v. Railway Co., 128 Mich. 444;Lincoln v. Railway Co., 179 Mich. 189 (51 L.R.A. [N.S.] 710);Paperno v. Michigan Railway Engineering Co., 202 Mich. 257."

See, also, In re Beiersdorfer's Estate, 297 Mich. 592.

In 1939, the legislature passed Act No. 297, Pub. Acts 1939, which amended Act No. 38, Pub. Acts 1848, being 3 Comp. Laws 1929, §§ 14061, 14062 (Comp. Laws Supp. 1940, §§ 14061, 14062, 14062-1, Stat. Ann. 1943 Cum. Supp. §§ 27.711-27.713), which reads as follows:

"SECTION 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 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 hereafter be brought only under this act.

"SEC. 2. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death: * * *

"SEC. 3. Insofar as the provisions thereof are inconsistent with the provisions of act number 38 of the public acts of 1848 as amended by this act, section 32 of chapter 12 of act number 314 of the public acts of 1915, being section 14040 of the compiled laws of 1929 is hereby repealed."

There is no doubt that prior to this amendment plaintiff in the case at bar would have had a cause of action against defendant estate. However, it would have been the cause of action which vested in Mrs. Bennett during her lifetime and prior to the death of Olney and which under the survival act would have survived in her personal representative and against the personal representative of Olney.

The facts in the case at bar necessitate a determination of the nature of the cause of action created by the amended act; and whether, under the present statute, it ever vested in plaintiff.

In construing the act before us it must be presumed that the legislature knew the construction which this court had given to both the death and survival acts; that the death act, prior to amendment, created a cause of action unknown to the common law in certain beneficiaries and was premised upon the wrongful act and death; and that this cause of action for death was different in kind from that which was permitted to survive under the survival act.

The amended act expressly provides that "all actions for such death or injuries resulting in death, shall hereafter be brought only under this act." An examination of the amended act in the light of the former law clearly reveals that the legislature intended to wipe out the fiction of instantaneous death and create one cause of action where death results, either "instantaneously" or from injuries wrongfully inflicted; and that this cause of action is a new statutory action. This intent is found not only in section 1 of the amendment, but also in the title which reads in part, "An act requiring compensation for causing death and injuries resulting in death by wrongful act;" and from an examination of the liability created as indicated by a comparison of the damages recoverable under the death and survival acts prior to this amendment and under section 2 of the amendment.

The situation prior to the 1939 amendment was that where the action was brought under the death act, recovery was limited by the act to actual pecuniary loss suffered by one entitled to or receiving support from the deceased (see In re Venneman's Estate, 286 Mich. 368) and funeral expenses (Edgerton v.Lynch, 255 Mich. 456). And where action was brought under the survival act (where the injured party survived even though only a short time), recovery was permitted of such damages as the deceased could have recovered had he lived to bring an action, such as conscious pain and suffering, loss of earnings sustained by deceased from the time of the accident until death and prospective loss from the date of death throughout the life expectancy of the deceased. See 18 Michigan State Bar Journal, p. 116.

The amendment makes no provision for recovery of the loss of earnings of the deceased either prior to his death or afterwards. It does provide for the "reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death." It also provides damages with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages.

As further indication of its intent to create a new statutory cause of action in cases of death from injuries, the legislature provided in section 3 that insofar as the provisions of the survival act (3 Comp. Laws 1929, § 14040) are inconsistent with the provisions of the amended act, they are repealed.

We conclude that the amendment to the death act excludes the cause of action for injuries which the deceased party had during his lifetime from the operation of the survival act, when the injured party dies prior to the bringing of an action; that the amendment does not join in a single cause of action two separate causes of action for injuries and death (see Beauvais v. Springfield Institute for Savings,303 Mass. 136 [20 N.E.2d 957, 124 A.L.R. 611 and annotation]) but creates an entirely new statutory cause of action applicable to all cases where death results from wrongful act, whether occurring "instantaneously" or as the result of injuries. The legislature has made not only the wrongful act, neglect or default of the wrongdoer a necessary element in the cause of action, but also the death of the injured party is a necessary fact to the right of his representative to maintain an action under this amendment. Death is a part of the substance or essence of the right.

It inevitably follows that the cause of action for injuries resulting in death created by this statute does not arise or come into being until the death occurs. The cause of action which the injured party has for his injuries now abates upon his death, at which time the new cause of action in his personal representative created by the statute arises. The legislature has given a new right of recovery in substitution for the right which the injured party had during his lifetime, the basis of which is the same wrongful act, but which does not come into being until his death.

Was this action lost because tortfeasor Olney predeceased Mrs. Bennett? The statute provides that "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."

Plaintiff argues that the legislature did not repeal the survival act insofar as it permitted recovery against the estate of a tortfeasor; and that the legislature did not provide that an action for injuries resulting in death could not be brought against the estate of the wrongdoer. Defendant contends that no cause of action existed against any person at the time of Mrs. Bennett's death; and that there can be no cause of action against a corpse.

The question is not whether an accrued cause of action abates because of the death of tortfeasor before an action is brought, as referred to in the dissenting opinion in Re Mueller'sEstate, 280 Mich. 203, or whether it survives, but whether the statute imposes liability directly upon the administrator of the tortfeasor's estate.

In Martinelli v. Burke, 298 Mass. 390 (10 N.E. [2d] 113, 112 A.L.R. 341), defendant died before plaintiffs. The court had before it for construction a statute containing language similar to our own. It said:

"The wording of the statute is, ``a person who by his negligence or by his wilful, wanton or reckless act * * * causes the death of a person * * * shall be liable.' It has been stated repeatedly that no cause of action arises until the actual occurrence of the death for which recovery is sought. * * * When that event took place in each of the cases at bar the ``person' who, in the language of the statute, would ``be liable' was himself dead. ``It is axiomatic that a corpse is not a person.' Brooks v. RailwayCo., 211 Mass. 277, 278 (97 N.E. 760). A dead person cannot ``be liable,' nor can a cause of action arise against a person who does not exist. * * * There are no words in the statute which can be construed as creating a new cause of action against the administrator of the wrongdoer after his appointment. The actor himself and not his administrator is named as the ``person' who is to ``be liable.' The administrator of the person killed is in a different position. The statute is explicit in granting him the right to prosecute in behalf of the specified beneficiaries the cause of action which arose upon the death of his intestate. * * *

"The conclusion is inescapable that none of the actions can be maintained. That result has been reached in the only cases which we have seen dealing with the precise question and is supported by the reasoning in cognate cases. Beavers' Administratrix v.Putnam's Curator, 110 Va. 713 (67 S.E. 353); Hegel v.George, 218 Wis. 327 (259 N.W. 862, 261 N.W. 14): Willard v.Mohn, 24 N.D. 390 (139 N.W. 979); Clark v. Goodwin,170 Cal. 527 (150 P. 357, L.R.A. 1916A, 1142): Hamilton v.Jones, 125 Ind. 176 (25 N.E. 192); Bates v. Sylvester,205 Mo. 493 (104 S.W. 73, 11 L.R.A. [N.S.] 1157, 120 Am. St. Rep. 761, 12 Ann. Cas. 457); Moe v. Smiley, 125 Pa. 136 (17 A. 228, 3 L.R.A. 341); Carrigan v. Cole, 35 R.I. 162 (85 A. 934); Johnson v. Farmer, 89 Tex. 610 (35 S.W. 1062)."

For the reasons given in Martinelli v. Burke, supra, the amended death act does not impose liability upon the administrator of the tortfeasor's estate.

The claim of plaintiff Edwin E. Bennett as administrator of the estate of Margaret B. Bennett should be reversed, without a new trial and without costs as to either party.