Hansen v. Hayes

• Decision Date: 05 December 1944
• Citation: 175 Or. 358,154 P.2d 202
• Parties: HANSEN <I>v.</I> HAYES
• Court: Oregon Supreme Court

175 Or. 358

154 P.2d 202

HANSENv.

HAYES

Supreme Court of Oregon.

Argued October 11, 1944.

Affirmed December 5, 1944.

Death

1. A wrongful death action based upon statute must be instituted by personal representative of deceased rather than by widow in her individual capacity.

Husband and wife

2. Medical and funeral expenses are "expenses of the family" within meaning of statute making expenses of family chargeable upon property of both husband and wife or either of them, and providing that they may be sued therefor jointly or separately.

Husband and wife

3. Under the family expense statute, wife is liable for amount of her husband's medical and funeral expenses.

Death

4. Where wife by statute was liable for husband's medical and funeral expenses which were incurred as a result of tort-feasor's negligence, under common-law principles, in absence of other statutory provisions, wife would be entitled to recover such expenses from tort-feasor.

Death

5. Where widow, under common-law principles and because of her liability under family expense statute, was entitled to recover deceased husband's medical and funeral expenses which resulted from tort-feasor's gross negligence, the fact that medical and funeral expenses could have been presented as preferred claims against husband's solvent estate did not relieve tort-feasor from liability.

Death

6. Under the death statute if any statutory beneficiaries are in existence, there is no statutory right of action for death by wrongful act for benefit of estate, so that if estate were required to reimburse widow for decedent's medical and funeral expenses which resulted from tort-feasor's conduct, estate as such would have no right of recovery against tort-feasor.

Death

7. A decedent's estate at common law has no right of action for death by wrongful act.

Judgment

8. Decedent's widow was not entitled to recover from tort-feasor who caused decedent's death, items of expense which administrator could properly have offered to enhance damages in death action for benefit of widow and other dependents of decedent.

Judgment

9. Widow of decedent, after once asserting claim for expenses in connection with decedent's death through administrator in statutory death action cannot again assert same claim against tort-feasor who allegedly caused decedent's death.

Judgment

10. A judgment on the merits is conclusive upon parties and privies both as to matters which were and which might have been litigated.

Death

11. Under the death statute, decedent's personal representative is proper plaintiff for benefit of statutory beneficiary as distinguished from an action under Employers' Liability Act in which it is of no importance that beneficiary sue in his or her own name.

Death

12. Generally, under Lord Campbell's Act and similar statutes, damages are measured by pecuniary benefits which beneficiaries might reasonably have expected to derive from decedent had his life not been terminated.

Death

13. Under the death statute, damages are awarded upon principle of compensation to repair pecuniary loss or losses sustained by persons in class of beneficiaries for which action is brought, except where decedent was not survived by a spouse or dependents, in which case action is brought for benefit of estate, and damages are measured by amount deceased would have probably earned during residue of his life, and which as representing his net savings would have gone for benefit of his estate, in view of his age, ability and disposition to work, and his habits of living and expenditure.

Death

14. In death action brought by decedent's administrator in behalf of decedent's widow and dependents, administrator was entitled to recover aggregate of damages suffered by widow and dependents, measured by loss of pecuniary benefits which widow and dependents might reasonably be expected to have derived from deceased had his life not been terminated.

Death

15. Where a beneficiary under death statute incurred and paid funeral expenses of decedent, administrator in maintaining death action for benefit of such beneficiary was entitled to present evidence of such expense as a direct loss sustained by beneficiary and one to be considered by jury in estimating total damage.

Death

16. Where decedent's widow paid decedent's funeral expenses and thereafter decedent's administrator brought a death action against tort-feasor who caused decedent's death, in which action administrator could have recovered funeral expenses on behalf of widow, widow was not entitled to recover funeral expenses from tort-feasor in a subsequent action, notwithstanding that in administrator's action objection to evidence of funeral expenses was sustained.

Estoppel

17. Defendant's objection that widow was not entitled to recover decedent's funeral expenses in an independent common-law action was not so inconsistent with defendant's successful objection in former death action by decedent's administrator that funeral expenses were not recoverable under death statute as to work an estoppel, since defendant was entitled to take position that neither administrator nor widow could recover funeral expenses.

Appeal and error

18. Where defendant both in death action by administrator and in widow's independent common-law action took position that decedent's funeral expenses, which had been paid by widow, were not recoverable in either action, defendant's suggestion in his brief on appeal in widow's action that, if funeral expenses were recoverable at all, they should have been recovered in administrator's action did not work an estoppel against defendant.

Death

19. The death statute creates a distinct new cause of action, not based on survival.

Death

20. Medical expenses incurred prior to decedent's death in an unsuccessful effort to save his life are not recoverable in an action under death statute.

Death

21. Where widow incurred medical expenses in an unsuccessful effort to preserve decedent's life, widow, in a common-law action, was entitled to recover such expenses from tort-feasor responsible for decedent's death, notwithstanding that decedent's administrator had previously maintained an action against tort-feasor under the death statute.

Death

22. Widow's common-law action against tort-feasor who was responsible for decedent's death to recover medical expenses incurred in an effort to preserve decedent's life was not governed by two-year limitation applicable to actions brought under death statute.

Limitation of actions

23. Defense of statute of limitations not raised by demurrer or plea was waived.

                  Absence of common-law right of action for wrongful death, note
                74 A.L.R. 14. See, also, 16 Am. Jur. 35
                  25 C.J.S., Death, § 108
                

Before BAILEY, Chief Justice, BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Action by Mary Edith Hansen against Bernard M. Hayes. From that portion of judgment allowing a recovery of medical expenses, defendant appeals, and from that portion of judgment denying recovery of funeral expenses, plaintiff cross-appeals.

AFFIRMED.

A.C. Spencer, Jr., of Portland (Maguire, Shields & Morrison, and R.K. Powell, all of Portland, on the brief), for appellant and cross-respondent.

James C. Dezendorf, of Portland (Hampson, Koerner, Young & Swett, of Portland, on the brief), for respondent and cross-appellant.

BRAND, J.

This is an action by the plaintiff, Mary Edith Hansen, widow of Peter Alfred Hansen, to recover medical and funeral expenses incurred by her in connection with the injury and ultimate death of her husband which resulted from the grossly negligent operation of an automobile by the defendant. The case was tried by the court without a jury. Based on findings of fact and conclusions of law, judgment was entered in favor of the plaintiff in the amount of the medical expenses incurred by her in an effort to save her husband's life. From this judgment the defendant appeals. The court also rendered judgment against the plaintiff on her claim for funeral expenses and from that judgment the plaintiff has filed a cross-appeal.

The defendant states that "the only errors he intends to urge on this appeal are that the said Findings of Fact entered by the trial court do not support the Conclusion of Law and Judgment * * * and that the complaint was not filed within the time required by law." He also contends that the complaint was demurrable.

The complaint alleges, and the court found, that plaintiff's deceased husband, while riding as a guest in an automobile operated by the defendant, received fatal injuries as a result of the gross negligence of the defendant. She alleges further:

"That Plaintiff, in an effort to save the life of Peter Alfred Hansen, was obliged to and did incur and pay expenses for ambulance, hospital, nurses, blood transfusions and doctor bills in the sum of $1,049.90. That all efforts to save the life of Plaintiff's husband, Peter Alfred Hansen, were unavailing and he subsequently died and Plaintiff was obliged to incur and pay funeral and burial expenses in the sum of $472.73."

The answer was a general denial of the charges of negligence and of the allegations concerning medical and funeral expenses.

For her reply, the plaintiff alleges:

"Defendant should be and he is estopped from contesting herein or from denying his liability for the damages herein claimed by Plaintiff by reason of the verdict and judgment heretofore entered in this Court in Case No. 138-014 entitled H.F. Edwards, Administrator with the will annexed of the Estate of Peter Alfred Hansen, deceased, Plaintiff, against Paul W. Anthony and Bernard M. Hayes, Defendants.

"That Plaintiff herein is the widow of Peter Alfred Hansen, deceased, and the former action above referred to was brought by the Administrator, H.F. Edwards, for and on behalf of Plaintiff herein under and by virtue of Section 8-903...