Albrecht v. Potthoff
| Decision Date | 23 November 1934 |
| Docket Number | 29,969 |
| Citation | 257 N.W. 377,192 Minn. 557 |
| Parties | E. H. ALBRECHT v. H. A. POTTHOFF |
| Court | Minnesota Supreme Court |
Action in the district court for Redwood county by the administrator of the estate of Florence Potthoff against decedent's father to recover, for the benefit of the next of kin, for her wrongful death, alleged to have been caused by defendant's negligence in the operation of an auto in which decedent was riding. The case was tried before A. B Gislason, Judge, and a jury. Plaintiff recovered a verdict of $2,800. Defendant appealed from the judgment entered after denial of his alternative motion for judgment or a new trial. Affirmed.
Death -- action for wrongful death -- for benefit of next of kin -- right of action.
1. An action by the administrator of the estate of a decedent for damages for wrongful death, under our statute, against husband of the sole beneficiary entitled to the proceeds of such action, if recovery is had, is not an action by the wife against her husband for a tort by the husband against the wife, and does not come within the common law rule that the wife cannot bring an action against her husband for a tort against her personally.
Death -- action for wrongful death -- no fraud or perjury.
2. There was no issue of any fraud or perjury in the present action.
Death -- action for wrongful death -- cause of death.
3. The evidence sustains the finding of the jury that decedent's injuries were a proximate cause of her death.
Appeal and error -- review -- admission of evidence.
4. Claimed errors in the reception of certain evidence were either harmless or not well founded.
Death -- action for wrongful death -- evidence -- mortality tables.
5. It was not error to receive mortality tables in evidence.
Death -- action for wrongful death -- damages.
6. The damages of $2,800 awarded are not so excessive as to justify a reduction or new trial.
Orr Stark, Kidder & Freeman, for appellant.
Pfaender & Glotzbach, for respondent.
Defendant appeals from a judgment in favor of the plaintiff.
The action is one to recover damages for the wrongful death of one Florence Potthoff, a daughter of the defendant, about 26 years of age. The action is predicated on the negligence of the defendant in driving an automobile wherein the decedent was riding. The car ran off the traveled highway and tipped over, causing injuries to decedent, which injuries are claimed to have caused her death some 17 days later.
The plaintiff, as administrator of the estate of decedent, brings the action for the benefit of the next of kin of the deceased. It is conceded that the defendant, the father of decedent, because his negligence caused the death, cannot participate in any benefit or recovery, if recovery is had. The evidence shows that decedent's mother, the wife of defendant, is the only beneficiary entitled to receive the amount recovered in the action, if recovery is had, less funeral expenses and any claims for support of decedent. The claims for support so provided for may reasonably be held to include hospital and medical expenses and care for the decedent after the accident.
1. The appeal raises a somewhat new question in this court, and counsel concede that no case precisely in point on the facts has been found by them. The question is: Can the administrator of the estate of a deceased person recover in an action for wrongful death of a decedent where the sole beneficiary, in case recovery is had, is the wife of the defendant, the defendant being the person whose negligence caused the death?
Concededly, under our decisions, the wife cannot recover against her husband for a tort against her personally. Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022, and cases there cited.
In State v. Arnold, 182 Minn. 313, 235 N.W. 373, we held that a wife cannot be convicted of larceny for stealing the husband's property. The decision was by a divided court.
In Maine v. James Maine & Sons Co. 198 Iowa 1278, 201 N.W. 20, 37 A.L.R. 161, and Emerson v. Western S. & I. Co. 116 Neb. 180, 216 N.W. 297, 56 A.L.R. 327, those courts held that the wife could not recover against the husband's employers under the law making the master liable for negligence of his servant, where the wife was injured by the negligence of her husband, acting as servant of the defendants. The decisions in these two cases are based on the primary holding that the wife cannot sue her husband for damages for a tort committed by him against her personally, hence, not for negligence causing personal injury to the wife. They add nothing to the primary rule stated.
Other cases are cited holding that a release by the sole beneficiary, or by all the beneficiaries, discharges the cause of action, and that the contributory negligence of the sole beneficiary is a bar to the action. We need not discuss these cases.
The statute under which this action is brought was enacted some time prior to 1862. It has been amended in several respects, not here material. That it created a new cause of action, unknown to the common law and nonexistent in this state up to the time it was enacted, is well established. Scheffler v. M. & St. L. Ry. Co. 32 Minn. 125, 19 N.W. 656, and other cases. That no one except the executor or administrator of the decedent's estate can bring the action is also settled by that case. The statute, 2 Mason Minn. St. 1927, § 9657, now reads:
The statute probably was based on what is known as Lord Campbell's Act, adopted in England in 1846.
Schwarz v. Judd, 28 Minn. 371, 372, 10 N.W. 208, 2o9.
The statute is remedial and is to be given a liberal construction. Bolinger v. St. P. & D.R. Co. 36 Minn. 418, 31 N.W. 856, 1 A.S.R. 680.
We do not depart from the law established by our prior decisions, holding that the wife cannot maintain an action against her husband for a tort committed by him against the person of the wife, nor can the husband bring such an action against the wife for a tort against him personally. As said in Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022, that question is settled by our prior decisions. It was there further decided that G.S. 1913, § 7142 (2 Mason Minn. St. 1927, § 8616) being a part of the laws relating to married women, did not authorize such an action. It is suggested in that case that, if the question were a new one, it would be open to consideration. But the present action is not brought by the wife against the husband. She could not bring the action. Only the representative of the estate of the deceased daughter could do so. The cause of action and right to sue are vested by statute in such representative. True, the recovery in this case, if obtained, is for the benefit of the wife, except as to funeral expenses and any claims for care. Again, the action is not brought to recover for any tort by the husband against the wife, but for a tort by the husband against the daughter of the parties. So we are called upon here to construe the statute relating to the action for damages for wrongful death as applied to the fact situation here shown, and not as it relates only to a suit by the wife to recover against the husband, or his employer, for a tort against her personally.
There is no statute which denies recovery in this or a similar action. On the contrary, the statute here in question, in clear language, authorizes recovery. In an action brought by the executor or administrator of the estate of a deceased, the only limitations stated are (a) that the decedent could have brought an action for the wrong, if he had lived, and (b) that the action be brought within two years after the wrongful act or omission.
In holding in our decisions that the wife cannot maintain an action against her husband for a tort by the husband against her personally, we based those holdings not on any statute of this state prohibiting the bringing of such actions, but on the negative holding that there was no statute expressly authorizing such actions and, therefore, the common law rule should be applied. But, while the common law rule denies the right of the wife to bring an action against her husband for a tort against her, our attention has not been called to any common law or any decision which prohibits the representative of...
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