Jirsa v. Ice, 11296

• Decision Date: 06 May 1974
• Docket Number: No. 11296,11296
• Citation: 88 S.D. 209,217 N.W.2d 465
• Parties: Ruth Evelyn JIRSA, Special Administratrix of the Estate of Arnold G. Jirsa, Plaintiff and Appellant, v. Cecil G. ICE, doing business as Ice Flying Service, and National Insurance Underwriters, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 465

217 N.W.2d 465

88 S.D. 209

Ruth Evelyn JIRSA, Special Administratrix of the Estate of Arnold G. Jirsa, Plaintiff and Appellant, v. Cecil G. ICE, doing business as Ice Flying Service, and National Insurance Underwriters, Defendants and Respondents.

No. 11296.

Supreme Court of South Dakota.

Argued March 4, 1974.

Decided May 6, 1974.

Bradley G. Bonynge, Wessington Springs, Theodore E. Wolcott, New York City, for plaintiff and appellant.

Martens, Goldsmith, May, Porter & Adam, Pierre, for defendants and respondents.

DOYLE, Justice.

This is a wrongful death action brought by the plaintiff, Ruth Evelyn Jirsa, as special administratrix of the estate of Arnold G. Jirsa, against Cecil G. Ice, doing business as Ice Flying Service (Ice), and National Insurance Underwriters (National).

On July 15, 1963, Ice entered into a written contract with the United States Department of the Interior under the terms of which he was to provide an airplane and pilot to transport government employees to inspect electrical transmission lines. The contract also provided Ice was to provide liability insurance for bodily injury and property damage. Such a liability policy was duly issued by National to Ice in compliance with the terms and conditions of the contract.

On July 22, 1963, Arnold G. Jirsa, a government employee, was a passenger in an aircraft owned by Ice and piloted by Harold Robert Emery, an employee of Ice, while on an inspection trip of the transmission lines in accordance with the contract. The aircraft crashed, killing both Emery and Jirsa.

The plaintiff served the initial summons and complaint in this action upon the defendants in December 1965. The complaint contained five counts. Count I contained allegations which brought it within the purview of the South Dakota Wrongful Death Statute, SDC 1960 Supp. 37.22, as amended by Ch. 235, S.L.1963;* Count II alleged a cause of action against Ice claiming breach of the contract between Ice and the United States of America, and asked damages for $100,000; Count III alleged a cause of action against Ice and National wherein the plaintiff alleged that National provided Ice with an insurance policy in accordance with the aforesaid contract with the United States Department of the Interior, and the plaintiff, as the widow and representative of the children of the decedent Arnold G. Jirsa, was the beneficiary of said insurance agreement and is entitled to reimbursement under the terms of the insurance policy, and requested judgment against National and Ice for the sum of $100,000. Count IV alleged a cause of action against Ice and National pursuant to the agreement between the United States Department of the Interior and the insurance policy issued by National, and requested judgment against Ice and National for $50,000. Count V was a separate cause of action against Ice for the conscious pain and suffering of the decedent between the time of injury and death, and requested judgment against Ice for the sum of $50,000.

Defendant moved for partial summary judgment as to Counts II, III and IV, and requested that the same be dismissed. The trial court entered a partial summary judgment dismissing these counts and limiting the prayer for judgment in Count I to the sum of $30,000 under Ch. 235, S.L.1963, the South Dakota Wrongful Death Statute, in force on July 22, 1963. The partial summary judgment was by order of the court made a final judgment of the court.

It is conceded by Ice that the plaintiff has alleged a cause of action against him for $30,000 under Count I and under Count V.

This appeal is based upon the dismissal of Counts II, III and IV and the court's order limiting to $30,000 the maximum to be recovered under the South Dakota Wrongful Death Statute, SDC 1960 Supp. 37.22, as amended by Ch. 235, S.L.1963. The plaintiff states the issues in this appeal to be:

'1. Do plaintiff and the designated beneficiaries have a common law remedy for wrongful death for the full pecuniary injury sustained by them which may not be limited?

'2. Do plaintiff and the designated beneficiaries have a direct cause of action against National Insurance Underwriters as a third party beneficiary under the policy written to cover this specific risk?'

We conclude the answer to each question to be negative and affirm the action of the trial court with respect thereto.

The first question propounded by the plaintiff has been before this court in Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, and a comprehensive analysis of the law on recovery for wrongful death was made by Chief Justice Biegelmeier. In Hoekstra v. Helgeland, supra, this court stated:

"The will of the sovereign power is expressed:

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'(4) By the Constitution of this state;

'(5) By statutes enacted by the Legislature; * * *'

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'At common law no civil action could be maintained for damages for the death of a human being brought about by either the wrongful act or negligence of another. Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep....