Murphy v. Duluth-Superior Bus Co.

Citation274 N.W. 515,200 Minn. 345
Decision Date25 June 1937
Docket NumberNo. 31253.,31253.
PartiesMURPHY v. DULUTH-SUPERIOR BUS CO.
CourtSupreme Court of Minnesota (US)

Appeal from District Court, St. Louis County; C. R. Magney, Judge.

Action by Milton T. Murphy, individually as and interested distributee, and as special administrator of the estate of Jerry P. Murphy, against the Duluth-Superior Bus Company. From an order directing distribution of funds between plaintiff and Ruth Murphy, plaintiff appeals.

Affirmed.

Thomas J. Joyce and Ralph E. Burdick, both of Duluth, for appellant.

Hugh McClearn and Erling Berg, both of Duluth, for respondent.

HILTON, Justice.

This is an appeal from the order of the district court of St. Louis county, directing the disbursement and distribution of $956.45 as hereinafter stated.

It appears that the appellant was the father of Jerry P. Murphy, a minor, who was killed when struck by a motor vehicle belonging to the Duluth-Superior Bus Company. As special administrator of the boy's estate, appellant commenced an action against that company under Mason's Minn. St.1927 (1936 Supplement) § 9657, which gives an action for death by wrongful act. A settlement of this action was made for $1,900, of which, after deducting medical and funeral expenses, attorney's fees, and other disbursements, there remains a balance of $956.45.

It also appears that in addition to the appellant, Jerry left surviving him his mother (respondent herein) and one brother. Respondent deserted the boy and the other members of her family some six years before Jerry's death, when he was about three years old. She has lived entirely apart from the family and with the exception of a few short visits with the children, has had nothing to do with them or the appellant since she left. Appellant secured an uncontested divorce from the respondent some time after she deserted him. There is evidence that Jerry never knew her as his mother, that there was no affection between them, and that the only "mother" he knew was the housekeeper hired to care for the children after the respondent had left them. There was no exchange of either gifts or communications between him and his mother during this time. Appellant has borne the entire burden of the support and care of the children since his wife's desertion. The evidence shows that she suffered no pecuniary loss through the boy's death.

Appellant petitioned the district court for a distribution of the amount received in settlement of the action. After providing for the payment of the expenses, the court ordered that the balance be distributed to the appellant and respondent, one-half to each, and appellant took this appeal from that order.

It is the contention of the appellant that a recovery under the wrongful death statute is limited to the amount of pecuniary loss actually suffered by those for whose benefit the action may be maintained, and since respondent suffered no such loss, she is not entitled to any of the money received in the settlement of the action. We are unable to sustain this latter claim.

The pertinent part of section 9657 is as follows:

"The damages therein * * * shall be for the exclusive benefit of the surviving spouse and next of kin, to be distributed to them in the same proportion as personal property of persons dying intestate. (Italics supplied.)

The deceased son left no spouse or issue, and the descent of his property is governed by Mason's Minn.St.1927 (1936 Supplement) § 8992-29, subsec. 4(3), as follows:

"If there be no issue nor spouse, the estate shall descend to the father and mother in equal shares, or if but one survive, then to such survivor."

In ordering one-half of the balance of the settlement money distributed to the respondent, the court was merely following the clear and express language of these statutes. It is true that the amount of recovery under section 9657 is limited to the pecuniary loss of those for whose benefit action may be brought....

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