Parsons v. Roussalis, 3959

• Decision Date: 20 September 1971
• Docket Number: No. 3959,3959
• Citation: 488 P.2d 1050
• Parties: D. Charless PARSONS, Administrator of the Estate of Verdie Jo Parsons, Deceased, Appellant (Plaintiff below), v. Louis J. ROUSSALIS, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 1050

488 P.2d 1050

D. Charless PARSONS, Administrator of the Estate of Verdie Jo Parsons, Deceased, Appellant (Plaintiff below), v. Louis J. ROUSSALIS, Appellee (Defendant below).

No. 3959.

Supreme Court of Wyoming.

Sept. 20, 1971.

G. L. Spence and Leonard E. Lang, Casper, for appellant.

William H. Brown, of Brown, Drew, Apostolos, Barton & Massey, Casper, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Mr. Justice PARKER delivered the opinion of the court.

After the death of his wife, who died following surgery by defendant for removal of gall bladder, plaintiff, as administrator of deceased's estate, filed complaint for damages, alleging four causes of action: (a) wrongful death-negligence, (b) survival action for personal injury, (c) breach of express contract, and (d) breach of implied warrancy. Uopn motion of defendant, portion 'b' of the complaint was stricken, ¹ and plaintiff has appealed from the judgment entered on behalf of defendant as to that cause.

Plaintiff correctly states that the case here turns upon an interpretation of § 1-28, W.S.1957, which provides:

'In addition to the causes of action which survive at common law, causes of action * * * for injuries to the person * * * shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same, provided that * * * if the person otherwise entitled thereto, dies, recovery shall be limited to damages for wrongful death.' ²

Speiser, Recovery for Wrongful Death, p. 749 (1966) speaks of this section as the 'highly ambiguous Wyoming survival statute,' pointing out that it had never been construed by the courts of Wyoming and observing the succinct phraseology of a Wyoming law journal article that 'The true meaning of the words is so obscure as to defy confident construction.' ³

The common law rule denying a right of recovery for the death of a human killed by the negligence or wrongful act of another has been fully examined in earlier Wyoming cases, as well as the loss of a right to recovery upon the death of the tort-feasor, ⁴ and further discussion of those aspects here is unwarranted. Suffice to note the comment by Speiser, supra, at pp. 24-25 that the majority of states have provided 'for the survival of decedent's action for the injuries which caused his death. Under a few statutes it has been held that recovery may not be had under both the survival statute and the wrongful death statute ⁵ and that the plaintiff must elect between the two remedies, or may bring only the wrongful death action. The majority of statutes, however, either expressly or by construction, permit both the survival action for fatal injuries and the wrongful death action to be maintained, and under many of these statutes the two actions may or must be consolidated for trial.'

Prior to 1947 Wyoming had not provided for the survival of a decedent's action for injuries which caused his death nor for the survival of an action brought by an injured party when the tort-feasor had died. Although the statutes which were the predecessors of §§ 1-1065 and 1-1066 had provided for actions notwithstanding the death of the person injured the wrongful death act was held by this court in Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105, 107, to be a survival statute only in the sense that damages might be recovered for the wrongful death, the court observing that the wrongful death act gave a new cause of action and was 'not one transferred from the decedent to the administrator but * * * one given directly to the administrator for the benefit of certain living relatives.'

It is plaintiff's thesis that a cause of action for personal injury clearly survives under § 1-28 and that in view of the language of that statute 'if the person otherwise entitled thereto, dies, recovery shall be limited to damages for wrongful death' the only limitation intended was that damages be 'fair and just,' the sole measure of damages for wrongful death prior to 1939. Peripherally plaintiff indicates his thought that Art. 108 § 4, Wyo.Const., does not permit any limitation as to damages other than 'fair and just,' avoiding any reference to the principle of ejusdem generis, and further that Art. 9, § 4, Wyo. Const., may well be a constitutional provision for the survival of personal injury actions. The constitutional aspects do not merit discussion since this court in Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380, 385-386, was definitive in saying that Art. 9, § 4, was not a provision for the survival of personal injury actions; and so far as the constitutional directive in Art. 10, § 4, is concerned, the debates ⁶ make it clear that no subsequent legislation was to have the effect of § 2364b, R.S.1887, which provided inter alia that 'the jury shall give such damages as they shall deem fair and just, not exceeding five thousand dollars.' (Emphasis supplied.) We see no basis for holding that such provision would preclude the legislature's preventing recovery under both a survival statute and one for wrongful death, which result we conclude was indeed what the legislature intended by the 1947 amendment of § 1-28.

The genesis of the section is significant. In 1947 House Bill 119, introduced by the judiciary committee, proposed an amendment to what was then § 3-402, W.C.S.1945 (now § 1-28), by adding the italicized words:

'In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person, or for an injury to real or personal...