Fowlie v. First Minneapolis Trust Co.
| Decision Date | 07 August 1931 |
| Docket Number | No. 28160.,28160. |
| Citation | 237 N.W. 846,184 Minn. 82 |
| Parties | FOWLIE v. FIRST MINNEAPOLIS TRUST CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Gunnar H. Nordbye, Judge.
Action by Frank Fowlie against the First Minneapolis Trust Company, as administrator of the estate of Ralph A. Parker, deceased. From an order overruling a demurrer to the complaint, defendant appeals.
Affirmed.
L. K. Eaton, of Minneapolis, for appellant.
M. H. Boutelle and A. H. David, both of Minneapolis, for respondent.
Action to recover for care, treatment, and medical attention for the plaintiff's wife, whose death was caused by the negligence of Ralph A. Parker, of whom the defendant trust company is the administrator. The defendant demurred. The demurrer was overruled, and the defendant appeals.
On June 6, 1929, the plaintiff's wife sustained an injury through the negligence of Ralph A. Parker, who met his death instantaneously by the same act of negligence that injured the plaintiff's wife. As a result of the injury the plaintiff's wife died on July 14, 1929. The plaintiff incurred in the care and treatment of his wife and in necessary medical services and attention as a result of the injury the sum of $5,000, which he seeks to recover from the defendant trust company, the administrator of the deceased.
The question presented is: Did plaintiff's cause of action survive his wife's death and the death of the wrongdoer who caused her death? The injury negligently inflicted upon the wife gave two separate and independent causes of action. One in favor of the wife for the damages suffered by her personally, and one in favor of her husband for the expenses he is put to in effecting her cure, and also for the loss of her services. Mageau v. Great Northern Ry. Co., 103 Minn. 290, 115 N. W. 651, 946, 15 L. R. A. (N. S.) 511, 14 Ann. Cas. 551; Libaire v. Minneapolis & St. Louis R. Co., 113 Minn. 517, 130 N. W. 8; Adams v. City of Duluth, 175 Minn. 247, 221 N. W. 8. Nothing is here claimed for loss of services. At common law the death of the injured wife did not abate the cause of action of the husband against the one whose tort caused her injury for his consequential damages. Hyatt v. Adams, 16 Mich. 180; Green v. Hudson River R. Co., 28 Barb. (N. Y.) 9. In case death results from the injury, the recovery for loss of services and the expenses incurred in the attempt to save her life is limited to the time intervening between the injury and the death. One court has held a husband's cause of action in such a case assignable and hence survivable. Forbes v. City of Omaha, 79 Neb. 6, 112 N. W. 326. In Smith v. Lehigh Valley R. Co., 232 Pa. 456, 81 A. 554, a husband's cause of action similar to the one at bar was held to survive to the administratrix of his estate. That which descends to the personal representative is generally regarded as assignable, and ordinarily assignability indicates survivability. That the husband's cause of action of the sort here in question does not abate on the wife's death is held also in Nixon v. Ludlam, 50 Ill. App. 273; Indianapolis & Martinsville Rapid Transit Co. v. Reeder, 42 Ind. App. 520, 85 N. E. 1042; Meese v. City of Fond du Lac, 48 Wis. 323, 4 N. W. 406.
But here the wrongdoer also is dead, and, under the common law, actions ex delicto abate upon the death of the tort-feasor. Our survival statute does not abate all ex delicto causes of action upon the death of the tortfeasor, but only those coming within the first sentence of the statute, composed of two sentences, reading Section 9656, Mason's Minn. St. 1927.
Section 9657 gives a new cause of action which does not arise until the death of the injured person occurs, and is for the benefit of the surviving spouse and next of kin. In such action there can be no recovery for expenses such as are sued for in the present action, and in this state the cause of action given by section 9657 abates upon the death of the wrongdoer. Green v. Thompson, 26 Minn. 500, 5 N. W. 376. However, on the last proposition the authorities are not in agreement, in part due to the difference in the language of the survival statute considered in connection with the Lord Campbell Statute of the particular state. See annotation to Claussen v. Brothers, 61 A. L. R. 826 (148 S. C. 1, 145 S. E. 539). It is true that the husband here would not have had the cause of action alleged unless his wife had been injured, and in that sense it may be said that his action arose out of "injury to the person." But the sentence refers to only two persons, the injured person and the one who perpetrated the injury, and we think the cause of action which dies with the death of either one of the two is the cause of action which arose in favor of the one injured for the personal damages suffered, and not for consequential damages suffered by a third party in his estate. Since, as above indicated, the husband's action for consequential damages does not abate by the wife's death nor by his death, for it passes to his personal representative, it is logical and fair to assume that such a cause of action is not within the purview of the first sentence of section 9656, inasmuch as it is limited to a cause of action arising out of injury to the...
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