Barragan v. Superior Court of Pima County

• Decision Date: 29 June 1970
• Docket Number: No. 2,CA-CIV,2
• Citation: 12 Ariz.App. 402,470 P.2d 722
• Parties: Wilfred G. BARRAGAN, individually and as Guardian of the Persons and Estates of Trina Liz, Edward, Carmen, Chuy Wilfred and Gloria Barragan, minors, and as Administrator of the Estates of Jesus Barragan, Deceased, and Delia Licon Barragan, Deceased, Petitioner, v. The SUPERIOR COURT OF Arizona, PIMA COUNTY, Alice Truman, a Judge thereof, and Trinidad B. Acosta, Respondents. 825.
• Court: Arizona Court of Appeals

Page 722

470 P.2d 722

12 Ariz.App. 402

Wilfred G. BARRAGAN, individually and as Guardian of the Persons and Estates of Trina Liz, Edward, Carmen, Chuy Wilfred and Gloria Barragan, minors, and as Administrator of the Estates of Jesus Barragan, Deceased, and Delia Licon Barragan, Deceased, Petitioner, v. The SUPERIOR COURT OF Arizona, PIMA COUNTY, Alice Truman, a Judge thereof, and Trinidad B. Acosta, Respondents.

No. 2 CA-CIV 825.

Court of Appeals of Arizona, Division 2.

June 29, 1970.

Chandler, Tullar, Udall & Richmond, by Robert S. Tullar, Tucson, for petitioner.

William T. Healy, Tucson, for respondent Acosta.

HOWARD, Chief Judge.

On May 8, 1970, in this special action, we granted petitioner relief from a superior court order denying his motion to substitute him as the party plaintiff in a pending lawsuit. ¹ Barragan v. Superior Court of Arizona, 12 Ariz.App. 200, 469 P.2d 92 (filed May 8, 1970). A motion for rehearing was timely filed by the respondent real party in interest, Trinidad B. Acosta, ² and, after consideration of the matter, this court has concluded that modification of our decision is necessary only as to the pending personal injury claim. However, we adhere to our decision that the trial court erred in denying the petitioner's motion to substitute him as the party plaintiff as to the pending wrongful death claim when it was made to appear of record that petitioner's son had died.

As we previously indicated, other jurisdictions do not consider their survival and wrongful death statutes as mutually exclusive remedies. See e.g., St. Louis, I.M. & S.R. Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160 (1915); Grant v. McAuliffe, 41 Cal.2d 859, 264 P.2d 944 (1953); Hopps' Estate v. Chestnut, 324 Mich. 256, 36 N.W.2d 908 (1948); Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205 (1934); Meinecke v. Intermountain Transp. Co., 101 Mont. 315, 55 P.2d 680 (1936); Kotkin v. Caprio, 65 N.J.Super. 453, 168 A.2d 69 (1961); Hoke v. Atlantic Greyhound Corporation, 226 N.C. 332, 38 S.E.2d 105 (1946); Klema v. St. Elizabeth's Hospital of Youngstown, 170 Ohio St. 519, 166 N.E.2d 765 (1960); Hale v. Hale, 426 P.2d 681 (Okl.1967); Schwab v. P.J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956); Landers v. B. F. Goodrich Company, 369 S.W.2d 33 (Tex.1963); Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538 (1939). The salutary effect of such viewpoint is reflected by the following:

'The purpose of providing both actions is to give and preserve to the parties damaged a complete remedy and opportunity to recover the complete loss sustained because of the wrongful injury and death.' 25A C.J.S. Death § 16, pp. 597--598.

In reliance on the obiter dictum of Quintero v. Continental Rent-A-Car System Inc., 105 Ariz. 135, 460 P.2d 189 (1969), we held otherwise, i.e., when the plaintiff in the pending personal injury action died, the action abated and the wrongful death remedy was substituted therefor. We now believe that the Quintero language is inapposite to the facts of the instant case since Mrs. Quintero's decedent was killed instantaneously as a result of the accident upon which her claim was predicated. ³ Here we have a situation where the decedent was seriously injured in the accident and lived more than a year before death ensued. Thus we see that although the allegedly wrongful act resulted in death, two interests have been invaded, i.e., That of the victim and that of the surviving beneficiaries. St. Louis, I.M. & S.R. Co. v. Craft, supra; note, 44 Harvard Law Review 980.

One law review author points out that a confusion of the underlying principles of our modern survival and wrongful death statutes and an apparent inability to distinguish between the rights conferred thereunder 'has developed a state of the law which could well be described as chaotic.' Rights of Action Under Death and Survival Statutes, 23 Mich.Law Rev. 114. He points out that after the injury and before the death, the injured person had a right of action against the tort-feasor and if he did nothing to impair this right, it survives, by the terms of the survival act, to his personal representative. He also points out that under the terms of a wrongful death statute, a new cause of action springs into being or is crystallized from an inchoate right into a legal right immediately upon his death.

In general, a survival statute provides for recovery of damages sustained by the deceased party from the time of accident until his death. Such damages include expenses incurred, necessitated by the injuries, in the nature of hospital and medical expenses. Mahoning Valley Ry. Co. v. Van Alstine, 77 Ohio St. 395, 83 N.E. 601 (1908). If an action is prosecuted to successful conclusion under the survival statute, the resultant proceeds may be of no benefit whatever to those persons who would take by virtue of the wrongful death statute. This is so because the claim passes from the decedent to the personal representative and becomes one of the assets of the estate. The wrongful death statute, on the other hand, does not adequately protect creditors of the estate for if the named statutory beneficiaries are living, under A.R.S. § 12--613 the proceeds of a wrongful death action are exempt from creditors' claims. As one law review article points out, a wrongful death statute authorizes compensation to special persons for their special injury whereas a survival statute provides an action for the benefit of the decedent's estate, and its purpose is to prevent the tortfeasor's liability from ceasing upon the injured person's death. 6 N.H. Bar Journal 305 (1963--64).

A wrongful death action is an original and distinct claim for damages sustained by the statutory beneficiaries and is not derivative of or a continuation of a claim existing in the decedent. Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960). A survival statute, on the other hand, does not create a new claim but merely prevents abatement of the injured person's claim and provides for its enforcement by his personal representative. Grant v. McAuliffe, supra.

Our survival statute, A.R.S. § 14--477, provides:

'Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, Shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.' (Emphasis added)

Our wrongful death statute, A.R.S. § 12--611 provides:

'When death of a person is 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...