DeHerrera v. Herrera, 4711

Decision Date15 June 1977
Docket NumberNo. 4711,4711
Citation565 P.2d 479
PartiesJuan L. DeHERRERA, as Administrator of the Estate of Joe B. Griego, Deceased, Appellant (Plaintiff below), v. Patricia HERRERA, Appellee (Defendant below).
CourtWyoming Supreme Court

Juan L. DeHerrera, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.

Glenn Parker, Hirst & Applegate, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

In this appeal, we must decide whether a cause of action for personal injuries survives under § 1-28, W.S.1957, where the injured party dies of an illness unconnected with the alleged negligence of a defendant. The district court granted summary judgment holding that such a cause of action does not survive. 1 We will reverse.

The plaintiff-appellant, as administrator of the estate of decedent, filed a complaint against defendant-appellee, charging her with driver negligence, while operating a motor vehicle, causing personal injuries to the deceased, resulting in pain and suffering, medical and hospital expense and lost wages. The decedent died of liver failure unrelated to the purported negligent conduct of the defendant. 2 Wyoming's controlling survival statute, § 1-28, supra, reads:

"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same, provided that in actions for personal injury damages, if the person otherwise entitled thereto, dies, recovering (sic) shall be limited to damages for wrongful death." (Emphasis added.)

At common law, actions for personal injuries, including wrongful death, did not survive. Mull v. Wienbarg, 1949, 66 Wyo. 410, 212 P.2d 380; Coliseum Motor Co. v. Hester, 1931, 43 Wyo. 298, 3 P.2d 105; Tuttle v. Short, 1930, 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106.

This court has construed § 1-28 but did so in a wrongful death case where the plaintiff attempted to recover for pain, suffering, disability and anguish, in addition to the damages allowed by the wrongful death act, §§ 1-1065 and 1-1066, W.S.1957. Parsons v. Roussalis, Wyo.1971, 488 P.2d 1050. The court held that in a case of wrongful death, § 1-28 3 was not meant to allow recovery under both the survival statute and the wrongful death act. Particularly excepted from the opinion was the question of the right of the administrator to bring a separate action for medical expenses; that is partly the issue we now have.

The statute is ambiguous. Does the proviso clause relate only to wrongful death actions brought under §§ 1-1065 and 1-1066? We have no problem if the tort feasor causing the injuries and death are the same; the question was answered in Parsons. Does the same proviso refer to the case where the tort feasor did not cause a wrongful death? This is the area of ambiguity requiring construction. A statute which is uncertain and susceptible to more than one meaning must be considered ambiguous. Natrona County v. Casper Air Service, Wyo.1975, 536 P.2d 142. We will not construe a statute if it is unambiguous. Wyoming State Treasurer v. City of Casper, Wyo.1976, 551 P.2d 687. When a statute is ambiguous, we will resort to statutory construction. Matter of Voss' Adoption, Wyo.1976, 550 P.2d 481. In Beal, "Wrongful Death in Wyoming: Two Causes of Action?", 16 Wyo.Law Journal 171, 175, it is said that the meaning of the proviso clause "is so obscure as to defy confident construction."

We are convinced that the statute is capable of a sensible construction. It has been partially construed in Parsons but not with respect to the situation presented here, where there was no wrongful death. It seems unbelievable that the legislature ever intended in one clause to grant survival of a cause of action for personal injuries and in a closing proviso, take it away.

It would be unreasonable for the legislature in one clause of a statute to bring about survival of a cause of action and in a following clause frustrate it as though never enacted. The legislature will not be presumed to intend futile things. Kuntz v. Kinne, Wyo.1964, 395 P.2d 286. We must give meaning to the clause "for injuries to the person." We can only construe the proviso to refer to those cases where death results from the injuries complained of. That situation is demonstrated in Parsons. It is not reasonable to relate wrongful death recovery to negligent acts not causing death.

The rule against permitting one statutory provision to neutralize another is somewhat illustrated in Hecht v. Carey, 1904, 13 Wyo. 154, 78 P. 705, 110 Am.St.Rep. 981. There, a statutory construction was urged upon the court which would require issuance of letters testamentary to a known nonresident, followed by a provision requiring his removal. The court held such a construction is a glaring absurdity and should not be adopted if avoidable. A rational construction was adopted, allowing the nonresident to come to the state, permit him to submit himself to the jurisdiction of the court and settle the estate. It is contrary to reason to ascribe to a statute a meaning that will nullify its operation, if capable of any other interpretation. Grand Rapids Furniture Co. v. Grand Hotel & Opera House Co., 1902, 11 Wyo. 128, 70 P. 838, reh. den. 72 P. 687. A statute should be construed in such a fashion that one provision will not destroy another. State ex rel. Benham v. Cheever, 1953, 71 Wyo. 303, 257 P.2d 337.

It would be helpful to a further and better understanding of our reasoning if we explain the distinguishing features of a wrongful death act as compared to a survival statute. It must be realized that the wrongful death statutes, §§ 1-1065 and 1-1066, are not part of the probate code, though provision is made for the appointment of an administrator. The designation of an administrator as a trustee is only a device to provide a party to file suit and pay over any damages collected to the beneficiaries designated by statute. The amount recovered does not become a part of the decedent's estate and is not liable for debts of the estate or subject to estate administration. Jordan v. Delta Drilling Company, Wyo.1975, 541 P.2d 39, 42.

On the other hand, a survival statute permits recovery by the decedent's personal representative on behalf of the estate; the prime difference between survival and wrongful death statutes is that the survival statute merely continues a cause of action in existence. The injured party's claim after death is an asset of the estate while the wrongful death statute creates a new cause of action for the benefit of designated persons who have suffered the loss of a loved one and provider. Speiser, Recovery for Wrongful Death, 2d (1975), § 14:1, p. 408. As said in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, footnote 2, reh. den. 415 U.S. 986, 94 S.Ct. 1582, 39 L.Ed.2d 883, survival statutes permit the personal representative of deceased to prosecute any claims for personal injury the deceased would have had but for his death but do not permit recovery for harms suffered by the decedent's family as a result of his death. The modern trend views tort causes of action as fairly a part of the estate of a plaintiff as contract debts, the question being one of why a fortuitous event, such as death, should extinguish a valid action. Prosser, Torts, 4th Ed. (1971), § 126, pp. 898-901.

These differences are apparent in the instant case. No new action in persons designated in the wrongful death act was created by the death of decedent....

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