Breckon v. Franklin Fuel Co.

• Decision Date: 12 March 1970
• Docket Number: No. 3,3
• Citation: 383 Mich. 251,174 N.W.2d 836
• Parties: Judith M. BRECKON, Administrator of the Estate of Herman E. Anderson, Deceased, and Judith M. Breckon, Administrator of the Estate of Thora M. Anderson, Deceased, Plaintiff-Appellee, v. FRANKLIN FUEL COMPANY, a Michigan corporation, and Eddie Grover, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 836

174 N.W.2d 836

383 Mich. 251

Judith M. BRECKON, Administrator of the Estate of Herman E Anderson, Deceased, and Judith M. Breckon Administrator of the Estate of Thora M Anderson, Deceased, Plaintiff-Appellee, v. FRANKLIN FUEL COMPANY, a Michigan corporation, and Eddie Grover, Defendants-Appellants.

No. 3.

Supreme Court of Michigan.

March 12, 1970.

Harold S. Sawyer, George L. Whitfield, Warner, Norcross & Judd, Grand Rapids, for plaintiff-appellee.

Cholette, Perkins & Buchanan, Grand Rapids, Grant J. Gruel, Grand Rapids (of counsel), for defendants-appellants.

Before the Entire Bench.

BLACK, Justice.

Upon application of the defendants for bypass of the Court of Appeals, the 6 participating Justices resolved unanimously August 15, 1968 to reconsider Wycko v. Gnodtke (1960), 361 Mich. 331, 105 N.W.2d 118, and review in that light the instant cause for wrongful death. The need for such action became crescently apparent as the Court divided equally in Burns v. Van Laan (1962), 367 Mich. 485, 497, 116 N.W.2d 873, and thereafter divided when the wrongful death actions shown by Currie v. Fiting (1965), 375 Mich. 440, 134 N.W.2d 611; Heider v. Mich. Sugar Co. (1965), 375 Mich. 490, 134 N.W.2d 637; Reisig v. Klusendorf (1965), 375 Mich. 519, 134 N.W.2d 634; Wilson v. Modern Mobile Homes Inc. (1965), 376 Mich. 342, 137 N.W.2d 144, and Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343, came one after the other to doubtful precedent.

Wycko presented a typical question of application to specific facts of interrelated and unambiguous sections of legislation providing the right of action for wrongful death, the specific measure of damages recoverable for such death, and a specially distinctive method of distribution of the damages thus recovered. It arrives again with foregone conclusion that what we now write and decide will receive more than passing study by the courts of other States, wherein statutes providing the right of action for wrongful death limit recovery on behalf of statutorily defined survivors to damages for the Pecuniary loss suffered by such survivors. In these circumstances we have decided to append below, for convenient interstate comparison with the pertinent statutes of such other States, the title and respective sections of our wrongful death statute, and the sections of our probate code which provided for the distribution of damages recovered for wrongful death, As that title and those sections stood when the causes of action pleaded in Wycko through Mosier arose. Legislative amendments of these statutory provisions, made in 1965, will come to consideration in another division of this opinion, post.

The title and complete text of Michigan's wrongful death statute, as amended by P.A.1939, No. 297, effective September 29, 1939, read as follows:

'An Act requiring compensation for causing death and injuries resulting in death by wrongful act, neglect or default; to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts.

'Sec. 1. Be it enacted by the senate and house of representatives of the state of Michigan, 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 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, 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: Provided, however, That such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence introduced upon the trial of such case. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.

'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.' (C.L.1948, §§ 691.581 et seq.).

Related sections 114 and 115 of the Michigan probate code of 1939, effective on the same date, appeared in the code under heading 'Settlement of Death and Survival Actions--Distribution of Proceeds.' Said sections 114 and 115 read as follows:

'Sec. 114 When, for the purpose of settling any claim or any final judgment rendered for damages for wrongful death or existing under the laws of this state relating to the survival of actions, the probate court is petitioned in writing by an executor or administrator asking leave to settle such claim, the court may, with or without notice, conduct a hearing and approve or reject such settlement.

'Sec. 115 The proceeds of any settlement of a cause of action for wrongful death, or the proceeds of a judgment recovered in an action for damages for wrongful death, shall be distributed in such manner, to such persons, and in such amounts as herein after set forth:

(1) The executor or administrator shall file with the probate court his petition for authority to distribute such proceeds; and upon the filing of such petition the court shall set a date for hearing thereon, which hearing may be held at the time of the hearing on the executor's or administrator's final account.

(2) Notice of such hearing shall be given to all persons entitled to inherit the intestate personal property of the decedent according to law, either by personal service or service by registered mail as provided in sections 32 to 35 of chapter 1 of this act, as the court may by its order direct: Provided, That any legally competent person may waive notice of such service in the manner provided in section 34 of chapter 1 of this act.

(3) If any of the persons entitled to inherit the personal property of the decedent as aforesaid shall be a minor or an incompetent for whom no guardian is acting, a guardian or guardian ad litem shall be first appointed and notice as provided in subsection 2 above shall be given to the guardian or guardian ad litem of such minor or incompetent.

(4) After hearing on the petition of the executor or administrator, the probate court shall enter an order distributing such proceeds only to those persons who were dependents of the decedent and in such amounts as to said court shall seem fair and equitable considering the relative damages sustained by each of such dependents by reason of the decedent's wrongful death: Provided, however, That if the proceeds which are to be distributed are proceeds of a judgment recovered in a court which has issued a certificate, as may be provided by law, relative to the damages sustained by each of such dependents, distribution of such proceeds shall, in the absence of written objections thereto filed by any interested party following service of notice as required by this section, be ordered in accordance with such certificate.

'The provisions of this section shall not apply to cases arising under the laws of this state relating to the survival of actions.

(5) In case none of the persons entitled to inherit the intestate personal property of the decedent is either a minor or an incompetent and all of such persons shall execute a stipulation or agreement in writing and acknowledged, as provided in section 34, chapter 1 of this act, in which is specified the portion of such proceeds to be distributed to each of such persons, the order of the probate court shall be entered in accordance with such stipulation or agreement.

(6) In the discretion of the probate court, provision may be made in its order for the payment of the funeral expenses of the decedent, but...