McGill v. General Motors Corp.

• Decision Date: 03 May 1971
• Docket Number: No. 24395,24395
• Citation: 484 P.2d 790,174 Colo. 388
• Parties: John K. McGILL, Jr., and Lovera M. McGill, parents and survivors of John K. McGill IV, Decedent, Plaintiffs in Error, v. GENERAL MOTORS CORPORATION, a Delaware corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 790

484 P.2d 790

174 Colo. 388

John K. McGILL, Jr., and Lovera M. McGill, parents and survivors of John K. McGill IV, Decedent Plaintiffs in Error, v. GENERAL MOTORS CORPORATION, a Delaware corporation Defendant in Error.

No. 24395.

Supreme Court of Colorado, En Banc.

May 3, 1971.

Friedman, Bader & Moore, Charles A. Friedman, Davis W. Moore, Jr., Denver, for plaintiffs in error.

Weller, Friedrich, Hickisch & Hazlitt, Michael E. Oldham, Denver, for defendant in error.

DAY, Justice.

Plaintiffs in error are the parents of John K. McGill IV and were plaintiffs below in a wrongful death action against General Motors, Inc., defendant in error and defendant below.

At the time of his death, the decedent was 23 years of age, married and childless. He was survived by his parents and his wife. He had been killed when his car went out of control allegedly caused by a defect in the car.

The decedent's wife failed to bring an action to recover for his alleged wrongful death, and consequently in May 1969, his parents attempted to bring such action against General Motors, Inc. as the manufacturer of the allegedly defective vehicle. Subsequently, the defendant filed a motion asking for summary judgment on the grounds that under the Colorado Wrongful Death Statute the parents of a child who is both married and of age at the time of his death have no standing to maintain such an action. The trial court granted the motion, and the plaintiff-parents have brought this writ of error.

I.

Plaintiffs allege first that they are the 'heirs' of the decedent for purposes of bringing suit under the Colorado Wrongful Death Statute. The pertinent statute is C.R.S. 1963, 41--1--1(1) which provides that a wrongful death action may be brought:

'(b) By the husband or wife of the deceased; or

'(c) If there be no husband or wife, or if he or she fails to sue within one year after such death, then by the Heir or heirs of the deceased; or

'(d) If such deceased be a minor or unmarried, then the father or mother who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor.' Id. (Emphasis added.)

Plaintiffs urge that we interpret the statute as follows: The decedent's wife had the sole right to bring an action for his wrongful death for one year. When she failed to bring suit within this period, the right to maintain the action passed to 'the heir or heirs of the deceased'; that both under the common law and Colorado laws of descent and distribution (C.R.S. 1963, 153--2--1), parents of a deceased are included within the definition of 'heir or heirs of the deceased' and are therefore entitled to bring the suit under section 41--1--1(1)(c), Supra.

We hold the judgment of the trial court was correct and affirm.

The statute giving the right to sue for wrongful death was first construed in 1897 in the case of Hindry v. Holt, 24 Colo. 464, 51 P. 1002, wherein a niece sought damages for the wrongful death of her uncle who had provided her with support. Although the niece is in the line of descent under the Colorado laws of descent and distribution, Supra, this court rejected the argument that she was included within the meaning of the term 'heir' as used in section 41--1--1(1)(c), Supra. In Hindry v. Holt, Supra, we said:

'By construing the words 'heir or heirs,' as used in the second subdivision, to mean 'child or children,' the purpose of this character of legislation is carried out, which is to compensate those who suffer pecuniary loss by reason of the death. While, on the other hand, if the words 'heir or heirs' are to be construed as meaning all those who, under the statute of descents and distributions, would be entitled to inherit, then collateral kindred, however remote, who would derive no pecuniary benefit from the continuance of the life of deceased, as well as the direct descendants, may maintain the action,--a result wholly inconsistent with the plain purport and object of the statute.

'And furthermore, such construction would render the third subdivision wholly useless and unnecessary, Since the father and mother would, by our act of descents and distribution, be the heirs in case the deceased was a minor, or unmarried, and, consequently, included within the class of beneficiaries described in the second subdivision.' (Emphasis added.)

Accord, Blom v. United Air Lines, 152 Colo. 486, 382 P.2d 993 (1963); Grogan et al. v. Denver and Rio Grande Railroad, 56 Colo. 450, 138 P. 764 (1914).

We add that to construe the words 'heir or heirs' to include the parents of a decedent would be to ignore the fact that the legislature has already provided a...