Olivier v. Houghton County St. R. Co.

• Decision Date: 15 September 1903
• Citation: 96 N.W. 434,134 Mich. 367
• Court: Michigan Supreme Court
• Parties: OLIVIER v. HOUGHTON COUNTY ST. RY. CO.

96 N.W. 434

134 Mich. 367

OLIVIER v. HOUGHTON COUNTY ST. RY. CO.

Supreme Court of Michigan

September 15, 1903

Error to Circuit Court, Houghton County; Albert T. Streeter, Judge.

Action by Charles O. Olivier, as administrator of the estate of Cyrille Boivin, deceased, against the Houghton County Street Railway Company. From a judgment in favor of plaintiff for alleged inadequate damages, he brings error. Reversed.

W. A Burritt, for appellant.

Gray Haire & Stone, for appellee.

HOOKER C.J.

The plaintiff's intestate was injured while riding in a wagon through a collision with a street car. He was rendered unconscious, in which condition he remained until his death upon the succeeding day. The declaration contained four counts, two under what has been termed the 'Death Act,' and two under the 'Survival Act.' One of each charged 'gross negligence.' It was not claimed that the plaintiff was chargeable with contributory negligence. Upon the undisputed fact that deceased lived until the following day, the court held the death not instantaneous, and excluded testimony under the counts based on the death act, and subsequently counsel abandoned the count charging gross negligence under the survival act. A verdict and judgment for the plaintiff for four dollars was rendered, and the plaintiff has brought error.

The appellant's counsel raises two questions: (1) Whether he was entitled to recover under the death act. (2) Whether the court erred in his instructions upon the measure of damages.

We see no reason for splitting hairs as to what is meant by instantaneous death, though we can appreciate the difference between a continuing injury resulting in drowning, or death by hanging, throwing from a housetop, etc., and one where a person survives the wrongful act in an injured condition. There is no occasion for saying that one dies instantly because such survival is accompanied by a comatose condition or unconsciousness, or insanity, or idiocy. The law draws no such distinction between the normal and abnormal, or the rational and irrational. Either has a right of action. In some cases the intervention of a next friend is necessary but that makes no difference. See 8 Am. & Eng. Enc. of Law, 866, and see, also, Kellow v. Iowa Cent. Ry. Co., 68 Iowa, 470, 23 N.W. 740, 27 N.W. 466, 56 Am. Rep. 858, where it was held that survival of the [96 N.W. 435.] injury for a moment is sufficient to permit the cause of action to vest and survive. This case is said to overrule the case of Sherman v. Western Stage Co., 24 Iowa, 515, cited in our case of Sweetland v. C. & G. T. R. Co., 117 Mich. 329, 75 N.W. 1066, 43 L. R. A. 568. We passed upon the question in the case of Dolson v. L. S. & M. S. R. R. (Mich.) 87 N.W. 629. This action survived, and under that decision no right of action under the death act accrued.

The court was of the opinion that the damages must be limited to the amount that deceased could have earned during the few hours that he lived after receiving the injury. It is but fair to state that this case was heard before the recent case of Keys v. Telephone Co. (Mich.) 93 N.W. 623, was decided. That case settled the rule for this...