Moore v. Palen
| Decision Date | 25 March 1949 |
| Docket Number | No. 34848.,No. 34850.,No. 38849.,No. 34847.,34847.,34848.,38849.,34850. |
| Parties | MOORE et al. v. PALEN et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Levi M. Hall, Judge.
Actions by Verna M. Moore, special administratrix of the estate of Frances Moore Anderson, and Elvira A. Anderson, special administratrix of the estate of Frederick William Anderson, against Arthur M. Palen and Philip G. Carney, doing business as Palen Refrigeration Service, and others to recover damages for the death of plaintiffs' intestates from a refrigerant gas. From orders denying their motions for judgment notwithstanding the verdict, or a new trial in each case, defendants appeal.
Orders affirmed.
Johnson, Sands & Brumfield and Durham & Swanson, all of Minneapolis, for appellants.
Donald O. Wright, of Minneapolis, for respondents.
Two actions were brought under our wrongful-death statute, M.S.A. § 573.02, by the special administratrices of the estates of Frances Moore Anderson and Frederick William Anderson to recover damages for the death of Frances and Frederick from methyl chloride refrigerant gas. Defendants are the owner of the building occupied by the Anderson couple and the organization which services the refrigeration system in that building. The actions were tried together to one jury, which found a verdict of $7,010.15 in favor of plaintiff in each case. This included $510.15 for funeral expenses for each decedent. Defendants appeal from the orders of the trial court denying their motions for judgment notwithstanding the verdict or a new trial in each case. The appeals are consolidated for presentation here.
Frederick Anderson and Frances Moore were married in June 1945. They died from methyl chloride poisoning some time between December 9 and 12, 1945. Frederick was then 19 years old and Frances 18. It appeared that the apartment where the couple had lived for three months was served by a central refrigeration system which used methyl chloride. When inhaled by human beings in amounts of two percent or more by volume, the gas from this chemical is sufficiently poisonous to cause extreme illness and even death. The couple and their cat had shown symptoms of this poisoning when last seen, but the illness was attributed to influenza. After their deaths were discovered December 12, 1945, tests made on the refrigeration plant showed a leak between the evaporator and the expansion valve in the refrigerator box in the apartment occupied by the couple. The proprietor of the refrigeration service company, which had serviced this system for the two years preceding the accident, testified that on December 5 a call was made at the apartment house; that on December 8 six pounds of liquid methyl chloride were added to the apartment house system; and that it did not contain any leak-detecting or odorizing agent, as required by an ordinance of the city of Minneapolis published December 22, 1936. There was also evidence that an employe of the refrigeration service company had worked on the refrigerator box in the apartment in question and had left a pinching tool on the exhaust suction side of the expansion valve, which, if not effective in cutting off the suction, would have permitted pressure in the apartment tank. No contention is made that the evidence of negligence is insufficient to support the verdicts.
The only surviving next of kin of Frances and Frederick Anderson were the widowed mother of Frances and the natural mother of Frederick, the plaintiffs herein. At the time of the trial Mrs. Moore was 48 years old. Mrs. Anderson's age was then 41. It appeared that prior to his marriage Frederick had assisted his parents in operating a grocery store, which was kept open for long hours. Both he and his wife, after their mariage, assisted in the store. This grocery store was sold in August 1945 in order to use the proceeds in the purchase of a restaurant at Annandale, Minnesota. Frederick and Frances were to be partners. Prior to her marriage, Frances had operated the house for her mother while the mother worked. The mother's jobs were not permanent until after the death of her daughter. After the marriage, the young couple lived with Mrs. Moore for a while. During that period, Frances continued to help with the work and in the preparation of the meals.
Both of the young people had been of assistance to their parents. Neither had been involved in trouble of any kind. Frederick enlisted in the navy in July 1943 and received an honorable discharge in March 1945. He was wounded in action in the South Pacific, after which he spent 13 months in hospitals. With the exception of the injury to his foot, the young man had been in good health up to the time of his death.
The territory of Wisconsin had no statute creating a cause of action for death by wrongful act, and so our territorial legislature, in 1851,2 enacted such a statute. In 1905, our statute was amended to create an action by the personal representative for the benefit of the surviving spouse and next of kin, superseding the provision for the benefit of the widow and next of kin. M.S.A. § 573.02.3 The nature of the right of action under this statute has been considered in Schwarz v. Judd, 28 Minn. 371, 10 N.W. 208; Sykora v. J. I. Case Threshing-Mach. Co., 59 Minn. 130, 60 N.W. 1008; Foot v. Great Northern Ry. Co., 81 Minn. 493, 84 N.W. 342, 52 L.R.A. 354, 83 Am.St.Rep. 395.
The defendants here contend that the burden is upon the plaintiffs to show that there was no surviving spouse before the next of kin could recover damages, except funeral expenses, since the damages are to be distributed according to the law of descent as to personal property, which in the case of a surviving spouse without children gives the entire personal property to the spouse. § 525.16. The consequences of such a rule where, as here, no proof is available as to survivorship would be to free a negligent defendant of liability, except for funeral expenses. The contention is effectively answered in Lahti v. Oliver Iron Min. Co, 106 Minn. 241, 242, 118 N.W. 1018, 1019, where a complaint was sustained which did not negative the leaving of a widow, but did allege that there was next of kin. This court said: .
However, as we view the law, when a married couple die in a common disaster and, as here, there is no proof available that one survived the other, the rights of succession to their estates and to recovery under § 573.02 are to be determined as if death occurred to both at the same instant — this, in spite of the fact that the law invokes no presumption that either survives or that they died at the same time. Petition of Willbor, 20 R.I. 126, 37 A. 634, 51 L.R.A. 863, 78 Am.St.Rep. 842.4 Any other rule would be a shield for the negligent and permit him to go unwhipped of justice. Such a consequence could not have been contemplated by the legislature in creating the action.
In the Willbor case the court said 20 R.I. at page 127, 37 A. 634, 51 L.R.A. 863, 78 Am.St.Rep. 842: ."5
This rule was approved in Young Women's Christian Home v. French, 187 U.S. 401, 410, 23 S.Ct. 184, 186, 47 L.Ed. 233, 236, a testamentary beneficiary case, where the Supreme Court, speaking through Mr. Chief Justice Fuller, said:
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