MacDonald v. Quimby

• Decision Date: 07 October 1957
• Docket Number: No. 132,132
• Citation: 85 N.W.2d 157,350 Mich. 21
• Parties: Delorez E. MacDONALD, Administratrix of the Estate of John R. MacDonald, Plaintiff and Appellee, v. Chester A. QUIMBY and Lubracrome Corporation, a Michigan corporation, Defendants and Appellees. Appeal of Eunice H. MacDonald TENBRINK, Petitioner in Intervention and Appellant. Motion
• Court: Michigan Supreme Court

Page 157

85 N.W.2d 157

350 Mich. 21

Delorez E. MacDONALD, Administratrix of the Estate of John R. MacDonald, Plaintiff and Appellee, v. Chester A. QUIMBY and Lubracrome Corporation, a Michigan corporation, Defendants and Appellees Appeal of Eunice H. MacDonald TENBRINK, Petitioner in Intervention and Appellant.

Motion No. 132.

Supreme Court of Michigan.

Oct. 7, 1957.

Russell W. Conroy and Roger H. Nielsen, Battle Creek, for appellant.

McAuliffe and Harbert, Battle Creek, for appellees.

Before the Entire Bench.

KELLY, Justice.

Plaintiff, as administratrix, commenced an action in the circuit court for the county of Calhoun, alleging that defendants' negligent acts caused her husband's death. The petitioner in intervention (appellant herein) contends that the court erred in denying her motion for leave to intervene, filed by her, as mother of the deceased who was receiving support from her son at the time of his death. The question presented has not previously been before this Court.

The wife of deceased filed her declaration on November 10, 1955, and defendants' answer was filed on November 16, 1955. Petitioner, as mother of the deceased, filed her motion and petition for leave to intervene on December 20, 1955, alleging that she had been receiving support from her son during his lifetime and that she had need of such support; that the administratrix and her attorney refused to recognize this need, advising appellant that if she had any right to recover it would be by her own action in court, although appellant had informed the administratrix that the statute prevented such action; that a settlement between defendants and plaintiff was imminent and that said settlement would ignore her claim.

Petitioner prayed for an order granting her request to intervene and restraining the plaintiff-administratrix from taking any action which would jeopardize petitioner's rights in court.

Defendants answered the petition, denying the mother had the right to intervene because she 'is not included among that class of persons entitled to recover for pecuniary injuries resulting from the wrongful death of plaintiff's decedent.' Plaintiff also filed answer to the petition.

The court entered an order denying petitioner's motion and petition for leave to intervene on January 16, 1956, and on February 1, 1956, a consent judgment was entered in favor of plaintiff and against defendants in the amount of $30,000. On the same day the court entered an order for distribution of the judgment moneys. Satisfaction of the judgment was filed on February 6, 1956, and proof of service of notice of entry of judgment was filed on February 7, 1956.

Appellant asks for the following relief:

'Petition for leave to intervene should be granted, and the recovery had should be held to be for the benefit of petitioner as well as the legal heirs of John R. MacDonald, deceased, in accordance with 'the pecuniary loss suffered."

The question presented calls for a construction of P.A.1939, No. 297, as it amended P.A.1848, No. 38 (C.L.1948, § 691.581 et seq. [Stat.Ann.1955 Cum.Supp. § 27.711 et seq.]), and more particularly C.L.1948, § 691.582, which provides:

'Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death: Provided, however, That such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence introduced upon the trial of such case. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.'

Previous to the 1939 amendment, P.A.1848, No. 38 entitled 'An act requiring compensation for causing death by wrongful act, neglect or default,' provided, by section 2 thereof, as amended by P.A.1873, No. 94, as follows:

'Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action, shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.'

A comparison of the act before the 1939 amendment with the act after amendment, establishes the following:

1) The words 'next of kin' were not mentioned in the act before amendment, and were inserted 5 times in the amended section.

2) Approximately the first half of the amended section does not discuss or provide for distribution and in this half there is no reference to heirs-at-law or next of kin and those entitled to damages are described as a 'class (emphasis ours) who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.' The word 'class' was not used in the act before amendment.

3) That the title of the amended act adds the words 'to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts.'

4) In the amended act when the words 'next of kin' are used, they are in each of the 5 occasions coupled with the word 'spouse,' as follows: 'surviving spouse and next of kin'; 'surviving spouse and all of the next of kin'; 'the surviving spouse and each of the next of kin'; 'surviving spouse and next of kin'; and 'surviving spouse and the next of kin.' Neither the words 'surviving spouse' nor 'next of kin' are found in the act before amendment.

5) The amended act provides that damages for pain and suffering of deceased during the period intervening between the time of injury and death shall be distributed without regard to pecuniary loss but according to the intestate laws. Before the amendment, no such provision existed.

The meaning of the words 'pecuniary injury' as used in the amended act is definitely established in Baker v. Slack, 319 Mich. 703, 714, 30 N.W.2d 403, 407, as follows:

'The remaining question is, what is meant in the 1939 act by 'pecuniary injury' to decedent's surviving spouse or next of kin. Does this include things so speculative and nebulous as the fondly nurtured hope of an inheritance, enhanced by redress for decedent's wrongful death, but suspended by the tenuous cord of decedent's possible intestacy? Assuredly not. In the Olney case [In re Olney's Estate], 309 Mich. 65, 14 N.W.2d 574, we recognized that, beyond compensation to a husband for loss of his wife's services, the right to recover for pecuniary loss must be predicated upon the existence of some next of kin having a legally enforceable claim to support or maintenance by deceased.

'In both the Olney case and the Grimes case [Grimes v. King], 311 Mich. 399, 18 N.W.2d 870, we pointed out that the provision in the 1939 act for compensation for 'pecuniary injury' is identical with that in the old death act. (There is, of course, a change as to method of and persons to whom distribution is made under the 1939 act.) Under the old death act, in construing the term 'pecuniary injury' recoverable under the act, we have uniformly held that, in addition to the husband's right to recovery for loss of his wife's services (or parent's right to recovery for loss of minor child's services) after deduction of her maintenance costs, further recovery could be had only for those persons who would have been entitled to inherit deceased's personal property had he died intestate (under the 1939 act this is changed to surviving spouse and next of kin), and for them only to the extent that deceased was legally obligated to contribute to the support and maintenance of any of them.'

No one disputes the fact that defendants caused pecuniary injury to the petitioning mother. Her right to recovery does not depend on the question as to whether her deceased son made the support payments voluntarily or under legal compulsion, as is established in our finding in Judis v. Borg-Warner Corporation, 339 Mich. 313, 326, 63 N.W.2d 647, 654, wherein we stated:

'Defendant claims error on the...