Kokesh v. Price

• Decision Date: 16 March 1917
• Docket Number: No. 20160[283].,20160[283].
• Citation: 136 Minn. 304,161 N.W. 715
• Parties: KOKESH v. PRICE.
• Court: Minnesota Supreme Court

136 Minn. 304

161 N.W. 715

KOKESH

v.PRICE.

No. 20160[283].

Supreme Court of Minnesota.

March 16, 1917.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

Action by James J. Kokesh, as administrator of his wife's estate, and individually against William Thompson Price. Judgment for plaintiff, in the representative action, and for defendant in the individual action, and defendant appeals. Affirmed.

Syllabus by the Court

In an action by a husband in his individual capacity to recover for injuries to his wife, negligence on his part which contributes to the injury is a bar to his recovery.

The courts are divided on the question whether in an action brought by an administrator the contributory negligence of a beneficiary is a bar to recovery to the extent that he will share in the amount recovered.

3. Where, however, only one of several beneficiaries is negligent, his negligence is not a bar to all recovery, and where no apportionment or reduction to the extent of his interest is asked for, full recovery will be allowed.

The intestate in this case while riding in an automobile received injuries from which she died. Under the evidence, she was not negligent as a matter of law.

The negligence of her husband driving the automobile in which she was riding was not imputable to her.

He was not her agent.

Nor were they engaged in a joint enterprise. The test in determining that question is whether they were jointly operating or controlling the movements of the vehicle in which they were riding. Trafford N. Jayne, of Minneapolis, for appellant.

Moritz Heim and A. W. Summerfield, both of St. Paul, and Paul J. Thompson, of Minneapolis, for respondent.

HALLAM, J.

James J. Kokesh, his wife, his daughter 19 and his son 17 started in the family automobile one Sunday afternoon in July to a nearby lake for a fishing trip. Kokesh was driving. His wife sat beside him. The son and daughter were in the back seat. In another automobile were some friends. The Kokesh automobile was going north. While rounding a corner at a country cross road to go to the left, that is, to the west, it collided with an automobile driven by defendant. Mrs. Kokesh was injured so that she died six days later.

Kokesh, as administrator of his wife's estate, sued defendant for damages under the death by wrongful act statute, G. S. 1913, § 8175. He also sued in his individual capacity for loss of services and society of his wife during the six days of her life after the injury. In the action by Kokesh, as administrator, the jury found for plaintiff. This amounts to a finding that defendant was negligent. They were instructed that Kokesh's negligence was no defense. In the action by Kokesh as individual they found for defendant. In this action they were instructed that Kokesh's negligence, if any, was a defense. Since the conduct of defendant was the same as applied to both cases, it follows that the jury must have found that Kokesh was negligent.

Both findings are sustained by the evidence. In fact the evidence would not sustain any other. View of the approach of both cars toward the crossing was obstructed by trees and shrubbery. Both parties admittedly approached this crossing without sounding a horn, a precaution required by positive statute, G. S. 1913, § 2633, and the dictates of common prudence as well. The evidence is ample that defendant approached the crossing at a high rate of speed. Evidence is also abundant that Kokesh cut the corner to the left of the center of the intersection instead of going to the right of the center as the law requires. G. S. 1913, § 2634. The position in which the two cars were found after the accident, taken in connection with admitted facts, leaves little doubt that both were negligent in the particulars charged.

The serious question in the case is whether in view of the negligence of Kokesh, he as administrator can be permitted to recover a verdict for the benefit of himself and his children.

Decisions such as Wellner v. Eckstein, 105 Minn. 444, 117 N. W. 830, and Gollnik v. Mengel, 112 Minn. 349, 128 N. W. 292, which pass upon the right of one causing death to inherit from the deceased, are not we think in point here. They involve construction of particular statutes, not pertinent here, and they involve rights in an estate existing prior to the death of the person deceased. The death itself does not create the estate. It does here.

[1] 1. A brief reference to decisions under death by wrongful act statutes may be enlightening. In an action by a husband in his individual capacity to recover damages for injury to his wife, negligence on his part which directly contributes to the injury is a bar to his recovery. Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670. The same rule bars his right of action for her death to which his negligence contributed, where by statute the suit for wrongful death is brought by the beneficiary in his individual capacity. St. Louis, S. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, 56 S. W. 46;Evansville & Crawfordsville Ry. Co. v. Wolf, 59 Ind. 89;Vinnette v. Northern Pac. Ry. Co., 47 Wash. 320, 91 Pac. 975,18 L. R. A. (N. S.) 328.

[2] 2. Under statutes which provide for an action by an administrator, the amount recovered has in some cases been regarded as part of the general estate of the deceased and on that ground contributory negligence of a beneficiary has been held not to bar recovery. Wymore v. Mahaska County, 78 Iowa, 386, 43 N. W. 264,6 L. R. A. 545, 16 Am. St. Rep. 449;Warren v. Street Ry., 70 N. H. 352, 47 Atl. 735;Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S. W. 301,38 L. R. A. (N. S.) 754; Gigoux v. Yamhill County, 73 Or. 212, 144 Pac. 437;Feldman v. Detroit United Ry., 162 Mich. 486, 127 N. W. 687.

In jurisdictions where the action is brought as in Minnesota by an administrator, not for the benefit of the estate generally, but for the benefit of the surviving spouse and next of kin, some decisions hold that the contributory negligence of a sole beneficiary is not a bar. McKay v. Syracuse R. T. Co., 208 N. Y. 359, 101 N. E. 885;In re Brennan's Account, 160 App. Div. 401,145 N. Y. Supp. 440;Consolidated Traction Co. v. Hone, 59 N. J. Law, 275, 35 Atl. 899, affirmed by tie vote, 60 N. J. Law, 444, 38 Atl. 759;Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069;Southern Ry. Co. v. Shipp, Adm'r, 169 Ala. 327,53 South. 150;Watson v. Southern Ry., 66 S. C. 47, 44 S. E. 375. Others hold that it is a bar. 2 Ill. L. Rev. 487; Lee v. New River & Pocahontas Consol. Coal Co., 203 Fed. 644, 122 C. C. A. 40,45 L. R. A. (N. S.) 940;Ohnesorge, Adm'r, v. Chi. City Ry. Co., 259 Ill. 424, 102 N. E. 819;Harton v. Telephone Co., 141 N. C. 455, 54 S. E. 299;Dickinson v. Stuart Colliery Co., 71 W. Va. 325, 76 S. E. 654,43 L. R. A. (N. S.) 335;Richmond, etc., v. Martin, 102 Va. 201, 45 S. E. 894, overruling Norfolk & Western R. R. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454,29 Am. St. Rep. 718;Tucker v. Draper, 62 Neb. 66, 86 N. W. 917,54 L. R. A. 321;Feldman v. Detroit United Ry., 162 Mich. 486, 127 N. W. 687;Bamberger v. Citizens' Street Ry. Co., 95 Tenn. 18, 31 S. W. 163,28 L. R. A. 486, 49 Am. St. Rep. 909;Ploof v. Burlington Traction Co., 70 Vt. 509, 41 Atl. 1017,43 L. R. A. 108;Scherer v. Schlaberg & Griffin, 18 N. D. 421, 122 N. W. 1000,24 L. R. A. (N. S.) 520. This court has assumed that there could be no recovery in such a case. Mattson v. Minnesota & North Wisconsin R. Co., 98 Minn. 296, 108 N. W. 517;Decker v. Itasca Paper Co., 111 Minn. 439, 127 N. W. 183. In each of these cases, however, the jury found there was no contributory negligence.

Where the negligence of one of several beneficiaries contributed to the death, it has sometimes been held that recovery should be denied to the extent that it would inure to the benefit of the one guilty of contributory negligence. Phillips v. Denver Co., 53 Colo. 458, 128 Pac. 460, Ann. Cas. 1914B, 29;Wolf, Adm'r, v. Railway Co., 55 Ohio St. 530,45 N. E. 708,36 L. R. A. 812;Davis v. Railroad Co., 136 N. C. 115, 48 S. E. 591,1 Ann. Cas. 214; Chicago City Ry. Co. v. McKeon, 143 Ill. App. 598. See Air-Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550,26 L. R. A. 553, 44 Am. St. Rep. 145. No trouble has been found in making a proper apportionment in such cases.

[3] 3. In this case there were three beneficiaries, the husband and two children. The husband alone was negligent. The question presented by this record is whether the contributory negligence of the husband barred all recovery by himself as administrator. Partial reduction to the extent of the share he may receive as beneficiary was not asked for in the trial court or in this court. Defendant has seen fit to stand or fall on the contention that his negligence is a complete bar. We do not sustain this contention. We see no principle of law on which it can be said that the negligence of one beneficiary can prejudice other beneficiaries. There is no partnership or community of interest between them; one is in no sense the agent or representative of the others. His negligence should not be imputed to them and it should detract nothing from them. If the children were small and the deceased the bread winner of the family, the objectionable result of such a rule would be more pronounced, but the principle is just the same. This court has held that one beneficiary cannot prejudice the rights of another by his positive act in making a settlement of the claim. McVeigh v. Minneapolis & Rainy River Ry. Co., 110 Minn. 184, 124 N. W. 971. His negligence is not a bar to their right.

[4] 4. The claim is made that deceased was negligent. If so, her negligence would bar recovery by her administrator. Lammers v. Northern Ry. Co., 82 Minn. 120, 84 N. W. 728;Miller, Adm'r, v. Louisville, N. A. & C. Ry. Co., 128 Ind. 97, 27 N. E. 339,25 Am. St. Rep. 416. The jury found that deceased was not negligent. The evidence sustains this finding. She was not the driver of the automobile, but a...