Baker v. Slack

• Decision Date: 05 January 1948
• Docket Number: No. 24,24
• Citation: 30 N.W.2d 403,319 Mich. 703
• Parties: BAKER v. SLACK.
• Court: Michigan Supreme Court

319 Mich. 703

30 N.W.2d 403

BAKER

v.SLACK.

No. 24

Supreme Court of Michigan

Jan. 5, 1948

Appeal from Circuit Court, Van Buren County; Glenn E. Warner, Judge.

Action by George A. Baker, administrator of the estate of Julia May Baker, deceased, against Edward Everett Slack for damages resulting from the death of plaintiff's decedent. From the judgment, defendant appeals.

Reversed and remanded.

Before the Entire Bench. Paulson & Laing, of Kalamazoo (Steg J. Lignell, of Grand Rapids, of counsel), for defendant and appellant.

Schaberg & Schaberg, of Kalamazoo, for plaintiff and appellee.

DETHMERS, Justice.

Plaintiff filed a declaration claiming judgment against defendant under the provisions of Act No. 38, Pub. Acts 1848 (the so-called “death act”), as amended by Act No. 297, Pub. Acts 1939, Comp.Laws Supp.1940, § 14061 et seq., Stat.Ann.1946 Cum.Supp. §§ 27.711 et seq. Defendant filed an answer raising issue as to the amount of damages only, in pursuance of Rule 23, § 8, of the Michigan Court Rules, and admitting liability for $190 for funeral and burial expenses, but denying that the decedent endured any pain and suffering or that anyone suffered pecuniary injury as the result of her death.

The proofs establish that defendant's automobile, while driven by him, struck plaintiff's decedent, inflicting injuries resulting in her death; that defendant “hit something and heard someone or something holler at the same time”; that decedent lived from 20 to 30 minutes after being struck; that she was at that time a widow, 63 years of age and in good health, with three married children, none of them dependent upon her for support and maintenance; that she then was and for some 10 years prior thereto had been residing with her son, plaintiff George A. Baker, and helped with chores and housework at his home; that his son furnished her board and room and gave her money from time to time as her needs required, but paid her no certain wages; that as a dependent of another son she had received two allotment checks from such son while he was in the army and within two or three months prior to her death; that the value, in the community in which they resided, of such services as she had been rendering in her son George's household was $15 per week or more. No witness testified that decedent was conscious after being struck by defendant's automobile. No testimony was introduced to establish that anyone was or had been dependent upon decedent for support or maintenance or that there was anyone to whom she was morally or legally obligated to contribute. Neither was there any testimony as to the cost of decedent's maintenance.

At the conclusion of plaintiff's proof defendant moved the court to direct a verdict for plaintiff for $190, the amount of decedent's funeral and burial expenses, on the following grounds:

“1. That is the only amount of damage proved in this case at this time.

“2. There is no evidence in this case that decedent was under either a moral or a legal duty to contribute to any of her children.

“3. There is no evidence in this case of conscious pain or suffering.

“4. There is no evidence in this case which would enable the jury to determine the cost of maintenance of the deceased by the plaintiff or any of the other children.

“5. It clearly appears, in the evidence most favorable to the plaintiff, that the deceased was dependent upon him at the time of her death.”

The court reserved decision on the motion under the Empson act and permitted the case to go to the jury on the question of conscious pain and suffering and of decedent's probable future earnings had she not been injured and killed, refusing defendant's request to charge that there was “no competent proof of damages in this case other than the expenses in the amount of $190.00.” The jury returned a verdict for $1,690. Defendant's motions for judgment, non obstante veredicto and for a new trial, embodying substantially the same theories contained in his motion for directed verdict, were denied and judgment entered for plaintiff. Defendant appeals.

The burden rested on plaintiff to prove every material element of his case at issue under the pleadings by a preponderance of the evidence, including the element of conscious pain and suffering. The statute under which this action is brought expressly permits damages 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.” There is no testimony that decedent was conscious after being struck. Plaintiff contends that defendant's admission that he “hit something and heard someone or something holler at the same time” is indicative of conscious suffering by decedent after she was struck; but the outcry occurred at the instant of the collision, not during the period, mentioned in the statute, intervening between the time of the inflicting of such injuries and her death. Witnesses produced at the trial saw decedent within a few minutes after injury and none testified that she was conscious then or at any time thereafter. There is nothing in the record from which it may be inferred that she was conscious at any time during the interim after being struck and before witnesses saw her. Plaintiff has not sustained the burden of proof in this respect. See Sweetland v. Chicago, etc., R. Co., 117 Mich. 329, 75 N.W. 1066,43 L.R.A. 568, and authorities therein reviewed.

The next question presented is whether recovery may be had under Act 297, Pub. Acts 1939, for loss of probable future earnings, without diminution for cost of maintenance, when the widowed decedent had an established earning capacity but no surviving spouse or next of kin to whom she was under a legal or moral obligation to contribute support.

It is plaintiff's theory that this question should be answered in the affirmative and that like recovery may be had after the effective date of the 1939 act as theretofore under the survival act. 3 Comp.Laws 1929, § 14040, Stat.Ann. § 27.684. In support thereof plaintiff quotes from In re Olney's Estate, 309 Mich. 65, 14 N.W.2d 574, 580, the following:

“Act No. 297 of the Public Acts of 1939 [Comp.Laws Supp. 1940, § 14061 et seq., Stat.Ann.1943 Cum.Supp. § 27.711 et seq.] does not repeal, but instead only amends, our so-called Death Act. 3 Comp.Laws 1929, § 14061 et seq. (Stat.Ann. § 27.711 et seq.). Nor does the 1939 Act repeal our so-called Survival Statute, (3 Comp.Laws [1929], § 14040 et seq. [Stat.Ann. § 27.684 et seq.] ), except in so far as section 14040 is ‘inconsistent’ with the 1939 Act. And we do not find section 14040 at all inconsistent with any provision in the 1939 Act, except that section 1 of the latter act provides: ‘All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.’ Section 14040 is still part of our statutory law, * * *.”

Plaintiff's brief and the opinion of the trial court also urge Grimes v. King, 311 Mich. 399, 18 N.W.2d 870, 873, as authority for the proposition that under the 1939 act, as under the old survival act, recovery may be had for loss of probable future earnings without diminution for maintenance costs and without a showing that those seeking recovery sustained a pecuniary loss. This they appear to have concluded from language appearing in the majority opinion in the Grimes case which reads as follows:

“The administrator's right to recover is not limited to the pecuniary loss suffered by the husband for the value of his wife's services. The deceased had an established earning capacity as a music teacher and had she lived throughout her expectancy could have added to the worth of her estate in which her heirs at law would participate. Under the statutory provisions, supra, they would also participate in the distribution of the damages assessed and collected.”

Closer scrutiny of the Olney case and the Grimes case is essential to proper understanding of the holdings of this court therein.

In the Olney case the tort-feasor predeceased plaintiff's decedent. The above quoted language from the majority opinion was in express answer to the position taken in the dissenting opinion to the effect that the 1939 act had completely repealed the survival act so that decedent's right of action existing against the tort-feasor during the lifetime of them both did not survive the injured party's death with the result that the new cause of action which would have arisen at her death under the 1939 act must be, as provided in the act, against “the person who * *& * would have been liable, if death had not resulted,” and such person being already dead and no action being maintainable against a corpse, there was no “person” who could be sued. In opposition to such position, the majority of this court held that there is survival under the survival act regardless of whether the death be that of the injured party or of the tort-feasor or of both; that this is in no wise inconsistent with the 1939 act and that, therefore, in that respect at least, the survival act continues in force. But the majority opinion recognizes that the elements of damages recoverable under the old survival act are in certain respects inconsistent with the provisions of the 1939 act and that the survival act is, therefore, to that extent, by reason of the repealing provision of Section 3 of the 1939 act, no longer in force. This is manifest in that plaintiff's decedent in the Olney case lived six days after she was injured and yet the majority of this court said:

“Our conclusion being that the administrator's cause of action survives, consideration must be given to appellant's claim that damages adjudged in the amount of $5,000 were excessive. In this connection the question arises as to what elements of damages may be recovered under the 1939 Act. This act specifically divides the damages recoverable into three classes. These classes are...