Broderson v. Boehm, 9304

• Decision Date: 12 May 1977
• Docket Number: No. 9304,9304
• Citation: 253 N.W.2d 864
• Parties: Einar BRODERSON, as Administrator of the Estate of Debra Boehm, Deceased, Appellant, v. Donald BOEHM et al., Appellees. Civ.
• Court: North Dakota Supreme Court

Page 864

253 N.W.2d 864

Einar BRODERSON, as Administrator of the Estate of Debra Boehm, Deceased, Appellant, v. Donald BOEHM et al., Appellees.

Civ. No. 9304.

Supreme Court of North Dakota.

May 12, 1977.

Syllabus by the Court

1. Recovery under the wrongful death statute inures to the benefit of heirs at law of the deceased, and such "heirs at law" are not limited to those persons listed in § 32-21-03, NDCC, who are entitled to maintain the action. Section 32-21-04, NDCC.

2. Where a technical word or phrase which has acquired a legal meaning and is unexplained and uncontrolled by the context in which it is found, it must be construed according to its meaning in law. Section 1-02-03, NDCC.

3. "Heirs at law" in the wrongful death statute means those persons who would succeed to the property of the decedent in case of intestacy, but if members of a preferred class are precluded from recovery, those next entitled to inherit may be considered beneficiaries. Section 32-21-04, NDCC.

4. Sisters of the decedent are not beneficiaries under the wrongful death statute where a parent of the decedent survived and was not disqualified from recovery. Section 32-21-04, NDCC.

Bjella & Jestrab, Williston, H. F. Gierke, III, Watford City, for appellant; argued by Frank F. Jestrab, Williston.

McIntee & Whisenand, Williston, for appellees Ronald Wold and Milton Wold; argued by Frederick E. Whisenand, Williston.

Pringle & Herigstad, P. C., Minot, for appellee McKenzie County; argued by Mitchell H. Mahoney, Minot.

Mackoff, Kellogg, Kirby & Kloster, Dickinson, for appellee Donald Boehm; argued by Allan Schmalenberger, Dickinson.

SAND, Justice.

This is an appeal from an order of the district court, McKenzie County, fifth judicial district.

A collision occurred on a road in McKenzie County on 26 October 1973 between an automobile driven by Pauline Boehm and a pickup truck driven by Ronald Wold. In the car with Pauline Boehm were her daughters, Debra, 12, Kara 7, and Kami, 6. Pauline and Debra Boehm died as a result of injuries suffered in the accident.

An action was commenced by Einar Broderson, as administrator of the estate of Debra Boehm, to recover for Debra's wrongful death. Those named as defendants were Ronald Wold, driver of the pickup, his father, Milton Wold, who owned the pickup, Donald Boehm, owner of the car driven by Pauline Boehm, and McKenzie County, which designed and maintained the road and operated the ambulance which picked up Debra Boehm following the accident. The complaint alleged that Debra's death, caused by the negligence and carelessness of the defendants, deprived them of her loving care, advice, guidance, comfort, and support, and that as an elder sister she would have assisted them in facing life without their mother. The complaint also alleged a loss on the part of Donald Boehm for funeral expenses incurred as a result of Debra's death. An amendment to the complaint was later allowed, which included allegations of further loss on the part of Donald Boehm by the death of his daughter; specifically, the loss of her assistance in caring for the younger children, preparing meals, performing other household duties, and providing comfort, and future earnings.

At a pretrial conference, defendant McKenzie County requested a ruling in advance on the admissibility of evidence showing damages sustained by the surviving sisters of the decedent. The trial court issued its order ruling that Donald Boehm was the "sole heir at law" and that any evidence pertaining to the losses sustained by the minor sisters of the decedent was inadmissible at trial. We conclude that such order involves the merits of the action and is, therefore, appealable under § 28-27-02(5), NDCC. See, Northwest Airlines v. State Board of Equalization, 244 N.W.2d 708 (N.D.1976).

The plaintiff appealed from that order, presenting us with the sole issue of whether or not minor sisters of the decedent, with a surviving parent, are heirs at law within the meaning of the wrongful death statute. We hold that under the circumstances of this case, they are not, and affirm the trial court's order.

This action was brought under the Death by Wrongful Act provisions of Chapter 32-21, North Dakota Century Code. The persons who may bring an action for wrongful death are listed in § 32-21-03, and they must proceed in the following order: surviving husband or wife, if any; surviving children, if any; surviving mother or father; and personal representative. The parties do not allege, nor do we find, any problem with the application of that particular provision to this case. The action was brought by the personal representative of the decedent Debra Boehm. She had no surviving spouse or children, and the trial court held that a demand need not be made on the surviving father, since he was named as a defendant in the action.

The provision which does create problems of application is § 32-21-04, NDCC, which reads:

"The amount recovered shall not be liable for the debts of the decedent, but shall inure to the exclusive benefit of his heirs at law in such shares as the judge before whom the case is tried shall fix in the order for judgment, and for the purposes of determining such shares, the judge after the trial may make any investigation which he deems necessary." (Emphasis added.)

This provision was discussed in Stangeland v. Minneapolis, St. P. & S. S. M. Ry. Co., 105 Minn. 224, 117 N.W. 386 (1908), an action based on the North Dakota wrongful death statutes. The Minnesota court said that § 32-21-04, NDCC, made it clear that whoever brings such an action does so in a representative capacity for the exclusive benefit of heirs at law, and that heirs at law were not limited to the persons specifically mentioned in the earlier section (now § 32-21-03), but included those who succeed to the property of an intestate by the laws of descent.

We are satisfied that, as stated in Stangeland, "heirs at law" in § 32-21-04, NDCC, is not to be defined merely to include surviving spouse, children, parents, or the personal representative, as listed in § 32-21-03. The two sections are distinct. It is unclear, however, how far the term "heirs at law" may be ultimately extended. Section 32-21-04 does not contain a definition of the phrase, nor is such a definition to be found anywhere in Chapter 32-21. We are left without an indication as to whether or not the legislature intended that a special meaning be given to "heirs at law" for purposes of a wrongful death action.

Lacking such an expression of intent, we must interpret "heirs at law" in its technical legal sense. The term "heirs," "heirs at law," and "legal heirs" are usually interpreted to be the same although the suffix "at law" is sometimes considered to add an expectant feature in referring to one's status toward an ancestor who is still living, whereas "heir" denotes that the ancestor has already died. See, In re Fahnestock's Estate, 384 Ill. 26, 50 N.E.2d 733 (1943), and In re Ward's Estate, 162 Misc. 855, 297 N.Y.S. 16 (1936). We interpret the term "heirs at law" in § 32-21-04, NDCC, to be equivalent to "heirs" inasmuch as that section refers to the "decedent" and the chapter itself grants a right of action only when death has resulted.

It is most commonly held that when no contrary intent appears, the word "heirs" is construed to mean those who take under the statutes of descent. Schaefer v. Merchants National Bank of Cedar Rapids, Iowa, 160 N.W.2d 318 (Iowa 1968). "Heirs" must be interpreted according to its strict legal import when unexplained and uncontrolled by the context in which it is found to mean persons who would succeed to a decedent's estate by statute in case of intestacy. In re Baird's Estate, 135 Cal.App.2d 333, 287 P.2d 365 (1955).

The intestacy statute in effect at the time this action was commenced was § 56-01-04, NDCC, which provided that if the deceased left no issue or spouse the estate would go to the father and mother in equal shares, and if either is dead, to the survivor. Only if no issue, spouse, or parent survived would the estate go to the brothers and sisters in equal shares. The administrator of Debra Boehm's estate argues that the Wrongful Death Act should not be correlated at all with the statutes of intestate succession and that the Wrongful Death Act is motivated by different policies and purposes than the inheritance laws and is wholly self-contained. With this statement we cannot completely agree. It is true that the intestate succession law should not and cannot be incorporated in toto into the Wrongful Death Act; evidence of this is the fact that distribution under the Wrongful Death Act is made "in such shares as the judge before whom the case is tried shall fix in the order for judgment," rather than according to the distribution scheme of the intestacy statutes. But "heirs at law" is a legal term and in its legal sense the phrase deals with inheritance. We must construe technical words and phrases according to the peculiar and appropriate meaning acquired in the law. Section 1-02-03, NDCC. Even if "heirs at law" is not considered to be a technical phrase it must be understood in its ordinary legal sense, as no contrary intention plainly appears in the statute. See, § 1-02-02, NDCC.

What we must decide here is to what extent the intestacy statute should be incorporated. Should "heirs at law" include anyone capable of inheriting under any circumstances under the intestacy laws so as to include all classes of persons listed in § 56-01-04 without regard to any sequence, or should it include only those who would actually inherit at the decedent's death?

This court has already held that brothers and sisters are capable of coming within the class "heirs at law" under the wrongful death statute in Satterberg v. Minneapolis, St. P. & S. S. M. Ry. Co., 19 N.D. 38, 121 N.W. 70 (1909). In that case the decedent was a single man who left no spouse, children, or...