Bennett v. Olney's Estate (In re Olney's Estate)

• Decision Date: 18 May 1944
• Docket Number: No. 43.,43.
• Citation: 309 Mich. 65,14 N.W.2d 574
• Parties: In re OLNEY'S ESTATE. BENNETT v. OLNEY'S ESTATE (two cases).
• Court: Michigan Supreme Court

309 Mich. 65

14 N.W.2d 574

In re OLNEY'S ESTATE.BENNETT

v.OLNEY'S ESTATE (two cases).

No. 43.

Supreme Court of Michigan.

May 18, 1944.

Proceedings in the matter of the estate of John B. Olney, deceased, wherein Edwin E. Bennett individually filed a claim for personal injuries and damages sustained as the result of an automobile collision, and wherein Edwin E. Bennett, administrator of the estate of Margaret B. Bennett, deceased, filed a claim for loss of prospective earnings and for pain and suffering, and the administratrix of the estate of John B. Olney, deceased, filed a crossaction. The probate court allowed the claims of the plaintiff, and defendant appealed to the circuit court, where judgments were rendered against the defendant, and the defendant appeals.

Judgment in favor of Edwin E. Bennett individually affirmed, and judgment in favor of Edwin E. Bennett as administrator of the estate of Margaret E. Bennett, deceased, affirmed on condition of remittitur.

REID, J., dissenting; and SHARPE, J., dissenting in part. Appeal from Circuit Court, Kent County; William B. Brown, judge.

Before the Entire Bench.

Allaben & Wiarda, of Grand Rapids, for defendant and appellant.

Herbert Hertzler, of Tawas City and Searl, Messinger & White, of Grand Rapids, for plaintiffs and appellees.

SHARPE, Justice.

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 U. S. 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, gangerine       ¦         ¦
                +--------------------------------+---------¦
                ¦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                         ¦5000.00  ¦
                +--------------------------------+---------¦
                ¦Total                           ¦$6471.03”¦
                +------------------------------------------+
                

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 expensesfor Mrs. Bennett were $721.71. The damage to Mr. Bennett's car was $405.00, making a total financial loss to Mr. Bennett of $1340.03.

‘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 $1200 would be a reasonable sum to be awarded to Mr. Bennett for his item of pain and suffering. This added to $1340.03, his financial damages, would be $2540.03, 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 or 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. 297, Pub. Acts 1939), 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...