Lucy v. Dowd
| Decision Date | 03 October 1938 |
| Docket Number | No. 78.,78. |
| Citation | 281 N.W. 314,285 Mich. 530 |
| Parties | LUCY v. DOWD. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Action by Cora Lucy, administratrix of the Estate of James Lucy, deceased, against Joseph Dowd, for the death of James Lucy, deceased, who was killed in an automobile accident. Judgment for plaintiff, and defendant appeals.
Affirmed.Appeal from Circuit Court, Genesee County; Phillip Elliott, judge.
Argued before the Entire Bench.
Edward N. Barnard, of Detroit, for appellant.
Dennis H. Dwyer, of Detroit, for appellee.
On April 21, 1935, plaintiff's intestate was struck and killed by an automobile owned by defendant. Plaintiff, widow, and administratrix of the estate of the deceased, brought this action to recover for the damages arising out of the accident. In Lucy v. Dowd, 276 Mich. 289, 267 N.W. 839, we held that, in view of the evidence presented at the first trial, it was error for the lower court to direct a verdict for defendant on the ground that deceased was contributorily negligent as a matter of law. The facts are fully set forth in that opinion and need not be repeated here.
The testimony of the witnesses at the second trial is substantially the same as that at the first. The jury returned a verdict for plaintiff, and in view of our decision in Lucy v. Dowd, supra, it cannot be said that that verdict is against the great weight of the evidence.
Defendant on appeal contends that plaintiff's declaration was fatally defective at the time the verdict was returned; that it was error for the court to permit amendment after verdict; and that, even as amended, the declaration will not support a judgment in favor of plaintiff.
The declaration contains but one count which states that plaintiff is claiming recovery both under the Death Act, § 14061, 3 C.L.1929, 20 Mich.Stat.Anno. § 27.711, and under the Survival Act, § 14040, 3 C.L.1929, 20 Mich.Stat.Anno. § 27.684. There are detailed allegations of damages to decedent himself while he was still alive, such as injuries, pain, suffering, and mental anguish, which allegations would be proper to establish liability under the Survival Act. However, before the declaration was amended, there were no allegations of pecuniary damage to this plaintiff through prospective loss of support.
The case was tried upon a theory of liability under the Death Act. Plaintiff introduced evidence of her dependency and that of her children, and of contributions to them by decedent in his lifetime. This evidence would be admissible only if plaintiff was suing to recover under the Death Act, but defendant raised no objections to the evidence until the end of the trial. At that time, defendant moved to strike out all evidence admissible only under the Death Act, and also asked for a directed verdict because of the defects in plaintiff's declaration. Plaintiff was given an opportunity to amend, but did not do so at that time. Defendant's motion was denied. The charge to the jury was predicated solely on liability under the Death Act, a finding of survival being expressly precluded. After verdict for plaintiff, she was allowed to amend the one count of the declaration to include allegations of pecuniary damage under the Death Act.
The declaration was clearly defective in the first instance in failing to allege a pecuniary loss of prospective contributions. Such loss is an essential element in a cause of action under the Death Act. Hurst v. Detroit City Ry. Co., 84 Mich. 539, 48 N.W. 44. However, plaintiff subsequently amended to include the necessary allegations. Defendant contends that such an amendment should not have been permitted. Plaintiff's failure to amend when first afforded the opportunity to do so would not prevent the court, in its discretion, from later permitting amendment. Defendant was in no way prejudiced and plaintiff should not be penalized for her attorney's lack of diligence.
In Hurst v. Detroit City Ry. Co., supra, it was held that a declaration originally framed on a theory of liability under the Death Act could not later be amended to provide for recovery under the Survival Act, because that would be adding a new cause of action. However, it does not follow that amendment should not have been permitted in the instant case. Plaintiff expressly alleged in the first instance that she was proceeding both under the Death Act and the Survival Act. Consequently, the amendment did not add a new cause of action, but merely served to amplify and correct a defective allegation of one of two causes of action already relied upon. The evidence presented at the first trial of this...
To continue reading
Request your trial
-
Hardy v. Maxheimer
...v Detroit United Railway, 157 Mich 683; 122 NW 367 (1909); Anderson v Jersey Creamery Co, 278 Mich 396; 270 NW 725 (1936); Lucy v Dowd, 285 Mich 530; 281 NW 314 (1938). "Confusion in the application of these two statutes was ended when the Legislature, by the enactment of a new wrongful dea......
-
Hawkins v. Regional Medical Laboratories, P.C.
...United Railway, 157 Mich. 683, 122 N.W. 367 (1909); Anderson v. Jersey Creamery Co., 278 Mich. 396, 270 N.W. 725 (1936); Lucy v. Dowd, 285 Mich. 530, 281 N.W. 314 (1938). Confusion in the application of these two statutes was ended when the Legislature, by the enactment of a new wrongful de......
-
Cassidy v. McGovern
...Plaintiffs failed to timely object or move for a mistrial. Secrist v. Detroit, 299 Mich. 393, 300 N.W. 137 (1941); Lucy v. Dowd, 285 Mich. 530, 281 N.W. 314 (1938). Therefore, I would reverse on this ground only where there is such a clear abuse of discretion on the part of the trial judge ......
-
Secrist v. City of Detroit
...192 Mich. 365, 158 N.W. 886;Burnett v. King, 252 Mich. 189, 233 N.W. 221;Greene v. Richer, 278 Mich. 1, 270 N.W. 194, and Lucy v. Dowd, 285 Mich. 530, 281 N.W. 314. Our study of the testimony requires the conclusion that there were disputed questions of facts both as to the claim of plainti......