Kling v. Phayer, 17366

• Decision Date: 07 September 1954
• Docket Number: No. 17366,17366
• Citation: 274 P.2d 97
• Parties: KLING v. PHAYER.
• Court: Colorado Supreme Court

Page 97

274 P.2d 97

130 Colo. 158

KLING v. PHAYER.

No. 17366.

Supreme Court of Colorado, En Banc.

Sept. 7, 1954.

H. Berman, Denver, for plaintiff in error.

Joseph P. Constantine, Denver, for defendant in error.

HOLLAND, Justice.

As the result of a trial to the court without a jury, on a complaint filed by defendant in error as administratrix of the estate of Winifred A. Phayer, for damages caused to the automobile of deceased arising out of a collision caused by the alleged negligence of plaintiff in error, Doris Marie Kling, in the operation of the automobile she was driving, plaintiff administratrix obtained a judgment for $820.32, being the amount of damage to the automobile in the sum of $112.50 and funeral expenses in the sum of $707.82, in her favor against Doris Marie Kling, defendant, plaintiff in error here. As a result of the injuries received, Winifred A. Phayer died June 19, 1951. The Employers Mutual Casualty Company, a corporation, was joined as party defendant in the complaint.

The negligence of Doris Marie Kling was clearly established. Defendants seemed to make little effort to contest the liability, apparently relying upon the position taken in the trial court and here, that the complaint failed to state a ground upon which relief could be obtained, in that an administrator cannot maintain an action for the recovery of funeral expenses for deceased.

Counsel for defendant Kling, now plaintiff in error, contends that the only remedy for recovery of the funeral expenses would be under the wrongful-death statute, which cannot be invoked in the instant proceeding because deceased was not survived by a husband or children, nor a father or mother, to which the statute limits such an action. Counsel for defendant in error contends that under our survival statute, being chapter 176, § 247, '35 C.S.A., she has a right to maintain the action. This statute is as follows:

'All actions in law whatsoever, save and except actions on the case for slander or libel, or trespass for injuries done to the person, and actions brought for the recovery of real estate, shall survive to and against executors, administrators and conservators.'

This exact question is now presented to our Court for the first time; however, we believe that the case of Fish v. Liley, reported in 120 Colo. 156, 208 P.2d 930, in which we construed the above statute, is controlling. Our Court, in the case of Tadlock v. Lloyd, 65 Colo. 40, 173 P. 200, 203, stated:

'Whether funeral expenses may properly be considered in actions for death by wrongful act has never been determined in this State. Upon the great weight of authority, however, under statutes like ours, permitting recovery of damages in such cases, funeral expenses are a proper element of damage, especially where, as in this case, the plaintiff, the father, was bound in law to assume and pay them.'

The subject of damages resulting from a wrongful-death accident was again discussed in Dillon v. Sterling Rendering Works, 106 Colo. 407, 106 P.2d 358, and finally deermined in McEntyre v. Jones, 128 Colo. 461, 263 P.2d 313.

The present action is for recovery, independent of the wrongful-death statute. The contention of counsel for defendant in error, which we believe and find to be correct, is that the...