Eades v. House

• Decision Date: 26 April 1966
• Docket Number: CA-CIV,No. 1,1
• Citation: 3 Ariz.App. 245,413 P.2d 576
• Parties: Lucy Fay EADES and Roy B. Eades, husband and wife, Appellants, v. J. P. HOUSE, Appellee. * 10.
• Court: Arizona Court of Appeals

Page 576

413 P.2d 576

3 Ariz.App. 245

Lucy Fay EADES and Roy B. Eades, husband and wife, Appellants, v. J. P. HOUSE, Appellee. ^*

No. 1 CA-CIV 10.

Court of Appeals of Arizona.

April 26, 1966.

Evans, Kunz & Bluemle, by Donald R. Kunz, Phoenix, for appellants.

Lewis, Roca, Scoville, Beauchamp & Linton, by D. W. Grainger, Phoenix, for appellee.

CAMERON, Judge.

This is an appeal from an order denying plaintiff's motion for new trial after a jury verdict in favor of the defendant in an action for injuries sustained by Mrs. Eades in an automobile accident. After the trial, but before the appeal could be heard, the injured Mrs. Eades died and defendant moved to dismiss said appeal.

We are called upon to determine whether an action for pain and suffering may survive the death of the injured person when death occurs during an appeal from a judgment of the lower court disallowing the claim of said person injured. We are also called upon to determine the effect of the instructions of the lower court concerning contributory negligence and the admission of certain evidence.

The facts as are necessary for a determination of the matter on appeal are as follows: On or about 15 January, 1957, the plaintiff, Lucy Fay Eades, sustained personal injuries while driving an automobile down an incline near Inspiration, Gila County, Arizona. Lucy Fay Eades together with her husband brought suit and alleged that the accident was as a result of the carelessness and negligence of the defendant driving his car into the rear of plaintiffs' automobile. The testimony of Lucy Fay Eades was to the effect that she was forced to stop to avoid hitting a dog in the street. She also testified that she was driving carefully and slowly because of a number of small school children who were on the sidewalk. Plaintiffs claimed an amount as and for pain and suffering, as well as $2,249.94, for medical expenses incurred at the time of filing the complaint plus an estimated $2,000.00 in additional medical expense. Trial was held before a jury and on 28 March, 1961, the jury found for the defendant and against the plaintiffs. From a denial of plaintiffs' motion for new trial, plaintiffs brought this appeal.

After perfecting the appeal, but before oral argument, plaintiff, Lucy Fay Eades passed away, and the defendant moved to dismiss the appeal because of the death of the plaintiff.

We will first concern ourselves with the effect of the death of the plaintiff, Lucy Fay Eades, upon the appeal. Arizona statutes state:

'Every cause of action, except a cause of action for damages for breach of promise to marry, seduction, libel, slander, separate maintenance, alimony, loss of consortium or invasion of the right of privacy, shall survive the death of the person entitled thereto or liable therefor, and may be asserted by or against the personal representative of such person, Provided that upon the death of the person injured, damages for pain and suffering of such injured person shall not be allowed.' 14--477 A.R.S.

We have recently stated in construing this statute (14--477 A.R.S.) that a cause of action for pain and suffering does not survive the death of the person injured. Harleysville Mutual Insurance Company v. Lea, 2 Ariz.App. 538, 410 P.2d 495 (1966), Harrington v. Flanders, 2 Ariz.App. 265, 407 P.2d 946 (1965). It is clear that had Lucy Fay Eades died after the accident, but before trial, that her cause of action would have abated by reason of her death. It is also generally agreed that had she prevailed in the court below, that her cause of action would have become merged in the judgment, and that the judgment would survive even though the original action was one that would not survive prior to judgment. As has been stated:

'In the ordinary case, the death of a party after the plaintiff obtains a judgment in the trial court does not preclude further litigation of an appeal, since the cause of action merges in the judgment, and the action does not abate though the original action was one that would not survive. However, if the judgment from which the appeal or error proceeding is taken is for the defendant, the plaintiff has obviously never succeeded in reducing his cause of action to a judgment and * * * if the cause of action is one which would not survive, it ceases to exist upon such death.' 4 Am.Jur.2d, Appeal and Error, Section 279, page 773.

The cause of action of the plaintiff for pain and suffering remains a cause of action for pain and suffering until it is reduced to a judgment. There being no judgment in the instant case for and on behalf of plaintiff for her pain and suffering, the cause of action abates upon her death. It is no more illogical for the legislature to provide that the action shall abate upon the death of the plaintiff where, as in the instant case, the plaintiff dies while the matter is on appeal from a defendant's verdict, than to provide that the plaintiff's cause of action abates upon death after the accident, but before a...