Merkle v. Bennington Tp.

• Decision Date: 29 September 1885
• Citation: 24 N.W. 776,58 Mich. 156
• Court: Michigan Supreme Court
• Parties: MERKLE v. BENNINGTON TP.

24 N.W. 776

58 Mich. 156

MERKLE v. BENNINGTON TP.

Supreme Court of Michigan

September 29, 1885

Error to Shiawassee.

G.R Lyon and Hugh McCurdy, for plaintiff.

S.F Smith and W.M. Kilpatrick, for defendant and appellant.

COOLEY C.J.

The action in this case was instituted to recover damages for the death of the plaintiff's intestate, caused, as is claimed, by a bridge being out of repair on a highway in the defendant township. It was brought under the statute of 1848 (S.L. p. 31,) as amended in 1873, (Gen.St. p. 127; How.St. �� 8313, 8314,) which is a general statute, and in its first section provides that "whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, and recover damages in respect thereof, then and in every such case the person who, or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount, in law, to felony." The plaintiff recovered judgment in the court below, and the defendant alleges error.

One error assigned goes to the whole ground of action. The action for causing death by wrongful act, etc., is purely statutory, there being none at the common law, and the defense contend that the statute of 1848, upon which the suit is based, has no application to cases of this nature. When that act was passed, townships were not liable for injuries occurring in consequence of defects in their bridges. That liability was created by subsequent statutes. Commissioners v. Martin, 4 Mich. 557; Leoni v. Taylor, 20 Mich. 148; Medina Tp. v. Perkins, 48 Mich. 67; S.C. 11 N.W. 810. Under the subsequent statutes the person injured may recover damages; but it is not expressly provided that his representative may recover in case of his death. His representative can therefore recover, if at all, only through the application to the case of the statute of 1848. But this, it is said, can only be done by very liberal construction of that statute, which, being in derogation of the common law, is to be strictly, rather than liberally, construed. Such is the argument.

But the statute of 1848 is in the strictest sense a remedial statute, and as such it should receive not a strict, but a favorable, construction. It was passed to remedy a great defect in the law, whereby, through the very severity of the injury which a party's negligence or misbehavior had caused, he in many cases escaped responsibility altogether, though these were exactly the cases in which he ought with most certainty to be held chargeable. But a liberal construction of the statute is not necessary to make it applicable in these cases, for we have only to apply it according to its plain language and intent, and it reaches them beyond question. It is general, and applies "whenever" a death has been caused under circumstances which would have given a cause of action had the person survived. It was not made for cases which might arise under the law as it then was, but it was enacted to establish a general and very wholesome rule, as applicable to causes of action that might arise under subsequent remedial statutes and as to those arising under the common law or under statutes then existing. The trial judge was right in overruling this defense.

In making out her cause of action, the plaintiff called Anna Merkle as a witness, who testified that she was then, December, 1884, 16 years of age; that on July 5, 1881, she went with her father, the intestate, to Owasso in a lumber wagon, with two horses, after a grist; that the road led across the bridge over the Maple river in Bennington; that in crossing that bridge the witness noticed the planks being broken and movable, and that they rattled when the horses went over them; one plank was warped and lifted up on the west side of the bridge. The horses were a gentle team and went over safely. It was in returning that the injury occurred, and the witness described it as follows: The horses "walked onto the bridge and walked up to the plank; they stepped onto the plank with their front feet, and the nigh horse noticed something wrong, and he turned his head to the right, and stepped onto it with his back feet and got caught; and he made one jerk and pushed the wagon sideways, and he went off sideways, and I heard something crack and fall onto the bridge. The tongue fell onto the bridge, and after that fell, the wagon turned towards the west and ran down the bank, and then turned right upside down. I jumped out into the road just before the wagon turned over. I jumped onto the bank. The road-track was on my side of the wagon. The tongue was down at that time and the horses were trying to get loose from the wagon, and they did get loose from the wagon and ran away. Nothing was broken about the wagon. I noticed before I went home that the whiffletree on the nigh side was broken. I ran across the bridge for help, but didn't stay to look at it. I noticed then that the plank was turned over and another one laid across. The plank was on the west side of the bridge, running right across, and another one turned towards the north, so it was out of place then. My father fell onto a pile of stones, and was injured very badly, and was not able to walk." He died some four weeks after the injury.

The plaintiff also produced William Hume as a witness, who testified that on July 5, 1881, he was called as a physician to see Mr. Merkle at Mrs. Cook's house, 20 or 30 rods from the bridge; that he found him in quite a good deal of agony; and, on examination, found that he had received a severe injury to the back, and in the region of the kidneys. Witness made up his mind then that Merkle was seriously injured internally, and would probably not recover. He asked Merkle to narrate "how the accident occurred, and he said that when he was driving over the bridge, as the horses got upon the plank, he said it was bowing, that both ends had over the end a 2X4 scantling that laid along the edge to hold the plank down. He said, as the right horse stepped upon that plank, the other end flew up--or the off horse--and scared one of the horses, and he jumped; and, as he jumped, he made a severe lunge, and the plank raised up under him, and the whiffletree broke and the tongue came down, so it just struck the last plank on the bridge; and that threw the tongue to the right, and the horses ran, and the tongue ran into the ground, and he was thrown on a pile of stones and he didn't know anything more until he found himself in Mrs. Cook's."

This evidence was received, under exception by the defense, and its reception is one of the errors now relied upon. For the plaintiff it is claimed that these statements of the intestate were admissible as part of the res gestae, and several cases are referred to as authority. One of these cases is Insurance Co. v. Mosley, 8 Wall. 399. In that case the question at issue was whether the decedent had died in consequence of an accidental falling down stairs in the night. His widow was permitted to testify that he got up in the night and went down stairs; that when he came back he said he had fallen down the back stairs, and almost killed himself; that he had hit and hurt the back of his head in falling, and he complained of his head, and appeared faint and vomited. She was up with him all night, and he appeared in great pain. ...