Burns v. Van Laan

• Decision Date: 10 September 1962
• Docket Number: No. 23,23
• Parties: E. Lois BURNS, Plaintiff and Appellant, v. George J. VAN LAAN, Vern Sturges, and Kent County Oil Company, a Michigan corporation, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 873

116 N.W.2d 873

367 Mich. 485

E. Lois BURNS, Plaintiff and Appellant, v. George J. VAN LAAN, Vern Sturges, and Kent County Oil

Company, a Michigan corporation, Defendants and Appellees.

No. 23.

Supreme Court of Michigan.

Sept. 10, 1962.

Vander Veen, Freihofer & Cook, Grand Rapids, for plaintiff and appellant.

Hayes & Davis, Grand Rapids (Kenneth T. Hayes, Grand Rapids, of counsel) for defendant and appellee, George J. Van Laan.

Cholette, Perkins & Buchanan, Grand Rapids (Don V. Souter, Grand Rapids, of counsel), for defendants and appellees, Vern Sturges and Kent County Oil Co.

Before the Entire Bench.

BLACK, Justice.

Plaintiff's husband lived approximately 24 hours following mortal injury caused by defendants' wrongful act. Suit under the death act resulted in a judgment against the defendants, in favor of the decedent's personal representative, in the sum of $25,000. The judgment was duly satisfied. Distribution of the proceeds was made as provided by section 2 of the wrongful death statute (C.L.1948, § 691.582), the present plaintiff as widow being one of the beneficiary-distributees. She subsequently filed this suit against the same defendants claiming in her own right that defendants' wrongful act caused an actionable loss of consortium. Judge Vander Wal, of the Kent circuit, granted defendants' motion to dismiss. He ruled:

'Therefore, the Court holds that (1) damages for loss of consortium due to a negligent injury is recognized in this state; (2) no cause of action lies for loss of consortium in instantaneous wrongful death; (3) that such a cause of action, if any, apparently may be and should be included in the wrongful death action under the wrongful death act. And, therefore, since plaintiff did not include these damages to her in her claim here as administratrix under the wrongful death act, there is no authority for allowing her to file for those same damages in a separate action.

'Plaintiff is claiming in this case, not damage for the brief 24 hour period but for damages for the loss of consortium after death for the life expectancy of the husband. Therefore, for the reasons above stated, the motions to dismiss are herein granted.'

We agree with Judge Vander Wal's conclusion (3) that whatever compensatory damages plaintiff may have suffered, or may hereafter suffer, in consequence of her husband's death, became suable and recoverable as against the defendants only by action brought in the name of the decedent's personal representative under the death act as amended in 1939. ¹ Such ruling is dictated particularly by the exclusive provisions of the death act aforesaid and the interpretation thereof made in MacDonald v. Quimby, 350 Mich. 21, 85 N.W.2d 157.

We said, in MacDonald (p. 29, 85 N.W.2d p. 161):

'The statute clearly shows that the legislature provided for one action for wrongful death, to be commenced by the administrator or administratrix, thus avoiding a multiplicity of suits. We find that the plaintiff-administratrix in this case occupied a trust relationship toward all who had a claim for damages against defendants, and we quote with approval from Wiener v. Specific Pharmaceuticals, Inc., 298 N.Y. 346, 83 N.E.2d 673, 675, and Janes v. Sackman Bros. Co. (C.C.A.), 2 Cir., 177 F.2d 928, 933.'

MacDonald's approval of what was said by the court of appeals of the 2nd circuit 177 F.2d 928 fully reflects our considered holding that the act of 1939 'created a unitary action for death and survival' and that a decedent's personal representative, suing thereunder, becomes a statutory trustee for all eligible beneficiaries of such unitary right and is exclusively entitled to recover, in their behalf, all legally recoverable damages each has suffered on account of the wrongful death. It follows that all damages suffered by this plaintiff widow on account of the wrongful and mortal injury to her husband became recoverable not by her but by such personal representative in her behalf. Such is the essence of MacDonald's ruling.

Now for the ultimate question: In the like case of Lampe v. Lagomarcino-Grupe Company, 251 Iowa 204, 100 N.W.2d 1, 3, 4, the court unequivocally held, and we agree, that 'Neither husband nor wife may sue in an individual capacity for the damages resulting from such wrongful death [citing authorities].' The court then referred to a previously cited authority (Acuff v. Schmit, 248 Iowa 272, 78 N.W.2d 480) and reasoned to what in our view was the only proper conclusion (pp. 208, 209, 100 N.W.2d p. 3):

'From Acuff v. Schmit, supra, it will be seen we are committed to the rule that a wife has a cause of action against one who has wrongfully or negligently so injured her husband as to deprive her of his consortium. It is clear, too, from a reading of the authorities, that the damages must stop when death occurs. In this case, plaintiff's husband survived the collision only a few minutes. This, then poses the question, did plaintiff prove damages were sustained by her in any amount capable of calculation? We hold she did not, and that the trial court was right is sustaining defendant's motion for judgment notwithstanding the verdict.

'Appellant asks: 'Can it be fairly said * * * that the wife of the husband who was incapacitated, sustained a loss and the widow of the deceased husband did not? Was the wife with the emasculated husband worse off after her husband's accident than was the widow after her husband's death?'

'The answer is that each had her remedy. The widow, as in this case, had, through the estate, the benefit of an action for the death of her husband. Sec. 635.9. By its verdict the jury, on Count I, undertook to compensate plaintiff, through the executrix as a proper conduit, for all the loss she sustained.'

By MacDonald's ruling the judicial aim was that of 'avoiding a multiplicity of suits' where death has been caused wrongfully. Too, we aimed toward due assurance that interested parties may sue, defend, negotiate, settle, receive and pay in reliance upon the exclusiveness of such statutory right of action. The Lampe case is in full accord.

For pertinent rules disclosing what is not recoverable by a surviving widow under our form of Lord Campbell's Act, see 16 Am.Jur. Death, § 199, p. 133; 17 C.J. Death, § 207(b), p. 1333; 25 C.J.S. Death § 104, p. 1254, and the leading case of Mich. Cent. R. R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417. Reference, with intent of adoption thereof, is made to the following continued portion of the Supreme Court's opinion of Vreeland (pp. 71-72, 33 S.Ct. p. 196):

'A pecuniary loss or damage must be one which can be measured by some standard. It is a term employed judicially, 'not only to express the character of that loss of the beneficial plaintiffs which is the foundation of their right of recovery, but also to discriminate between a material loss which is susceptible of pecuniary valuation, and that inestimable loss of the society and companionship of the deceased relative upon which, in the nature of things, it is not possible to set a pecuniary valuation.' Patterson, Railway Acci. Law, § 401.

'Nevertheless, the word as judicially adopted is not so narrow as to exclude damages for the loss of services of the husband, wife, or child, and, when the beneficiary is a child, for the loss of that care, counsel, training, and education which it might, under the evidence, have reasonably received from the parent, and which can only be supplied by the service of another for compensation.

'In Tilley v. Hudson River R. Co., 24 N.Y. 471, AND N.Y. 252, the court stated that 'the word 'pecuniary' was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship, which are equally incapable of being defined by any recognized measure of damages.'

'To the same effect are the cases of Schaub v. Hannibal & St. J. R. Co., 106 Mo. 74, 16 S.W. 924, which was followed by the Circuit Court of Appeals for the Eighth Circuit in Atchison [& C.] R. Co. v. Wilson, 1 C.C.A. 25, 4 U.S.App. 25, 48 Fed. [Rep.] 57; Lett v. St. Lawrence & O. R. Co., 11 Ont.App.Rep. 1; Pennsylvania R. Co. v. Goodman, 62 Pa. 329, 339; Louisville N. A. & C. R. Co. v. Rush, 127 Ind. 545, 26 N.E. 1010; Tiffany, Death by Wrongful Act, §§ 154 to 162, inclusive; Patterson, Railway Acci. Law, §§ 401 to 406.' ²

Having so concluded, and then having declared that 'no hard and fast rule by which pecuniary damages may in all cases be measured is possible.', the Supreme Court went on to criticize, as reversible error, the following instruction to the jury (p. 73, 33 S.Ct. p. 197,):

'In addition to that, independent of what he was receiving from the company, his employer, it is proper to consider the relation that was sustained by Mr. Wisemiller and Mrs. Wisemiller, namely, the relation of husband and wife, and draw upon your experiences as men, and measure, as far as you can, what it would reasonably have been worth to Mrs. Wisemiller in dollars and cents to have had, during their life together, had he lived, the care and advice of Mr. Wisemiller, her husband.'

Of the Vreeland case the district court for the District of Columbia said (Ciarrocchi v. James Kane Co., 116 F.Supp. 848, 850):

'At common law, a wife has no right of action for loss of consortium or other injury on account of the death of her husband by wrongful act. The Hitaffer case only gave her a right of action for loss of consortium in case of injury. That no civil action can be maintained at common law for wrongful death is noted by a statement in the leading case of Michigan Central Railroad Co. v. Vreeland, 1913, 227 U.S. 59, 67, 33 S.Ct. 192, 195, 57 L.Ed. 417, that, 'Nothing is better settled than that, at common law, the right of...