Partyka v. Yazoo Development Corp.

• Decision Date: 12 September 1979
• Docket Number: No. 51254,51254
• Citation: 376 So.2d 646
• Parties: Mrs. Joseph F. PARTYKA, Individually and as Executrix of the Estate of Eugene F. Hall, III, Deceased v. YAZOO DEVELOPMENT CORPORATION, 5A's Enterprises, Inc. and Tee Taylor.
• Court: Mississippi Supreme Court

Page 646

376 So.2d 646

Mrs. Joseph F. PARTYKA, Individually and as Executrix of the Estate of Eugene F. Hall, III, Deceased v. YAZOO DEVELOPMENT CORPORATION, 5A's Enterprises, Inc. and Tee Taylor.

No. 51254.

Supreme Court of Mississippi.

Sept. 12, 1979.

Rehearing Denied Nov. 28, 1979.

Paul D. Snow, III, Jackson, for appellant.

Riddick & Carpenter, Robert M. Carpenter, Jackson, for appellees.

En Banc.

COFER, Justice, for the Court:

Appellant, Mrs. Partyka, mother and executrix of the will of Eugene F. Hall, III, (Mr. Hall) brought suit for his death in the Circuit Court of Yazoo County. Appellees Yazoo Development Corporation (Yazoo), 5A's Enterprises, Incorporated, and Tee Taylor, incorporated in their answer to appellant's declaration, a special defense that, tersely stated, charged appellant had no standing to sue under Mississippi Code Annotated section 11-7-13 (1972), because deceased left surviving him his wife, Mrs. Hall, who was injured in the same accident and succumbed to the injuries approximately thirty minutes after her husband's death. On a hearing on the defense in advance of the hearing on the merits, the court sustained the special defense and appellant's suit was dismissed. This appeal resulted, appellant assigning two errors:

1. The lower court committed reversible error by sustaining defendants plea in bar because the deferred class of statutory beneficiaries under our wrongful death statute should be entitled to the cause of action and damages for the wrongful death of their blood relative when the only member of the preferred class of statutory beneficiaries is not living at the time suit is filed or recovery is made;

2. A last will and testament should circumvent our wrongful death statute.

The disastrous accident occurred April 21, 1978. Appellant filed suit for the death of her son, Eugene F. Hall, III, on May 4, 1978, the suit being for the benefit of all beneficiaries under section 11-7-13 (statute), and being brought in her individual name. On May 11, 1978, Mrs. Carrie Mae Dearman, mother of Mrs. Hall, having qualified as Mrs. Hall's administratrix, brought a suit for the wrongful death of Mrs. Hall and another suit for the death of Mr. Hall. On discovery of a will which Mr. Hall had made, wherein appellant was named executrix and sole primary beneficiary, which she caused to be probated, and received the court's authority to bring the suit, appellant, on June 20, 1978, amended her declaration to sue individually and as executrix. (The amended declaration asserted that the suit was "for herself and on behalf of the heirs at law and/or next of kin of decedent which include his mother, Mrs. Joseph F. Partyka; his father, Eugene F. Hall, II; his half-brother, Jon M. Freemen; his half-sister, Mrs. Janice Kay Beard; his twin sister, Mrs. Gail Verret; and his sister, Mrs. Julie Bennett.")

Mrs. Hall's administratrix did not participate in appellant's hearing on the special plea, but her attorney lent help to defendants in successfully advancing the plea matter.

The important issue herein involved is whether on Mrs. Hall's decease (there were no children born to the decedents) the benefits to which she was entitled on account of Mr. Hall's death became a part of her intestate estate, or whether the second group of beneficiaries named in the statute became, on her death, the parties entitled to maintain a suit and recover the damages for Mr. Hall's wrongful death.

We affirm the lower court.

At the outset, we observe that appellant seems to find support in Smith v. Garrett, 287 So.2d 258 (Miss.1973). The crucial decision there was whether the recovery for Mrs. Smith's death went to her heirs (a group of first cousins), by descent and distribution, or whether "general distribution" under the statute would permit its being paid out according to the wrongful death victim's will. This Court held in favor of testamentary disposition, and is not authority here.

Appellant also misconstrues Southern Pine Electric Power Association v. Denson, 214 Miss. 397, 57 So.2d 859 (1952). While it was established in the proof that Mrs. Stringer survived her husband for a very short interval, both having been electrocuted in the same occurrence, the case did not turn on her survivorship, but rather the entire pleadings were cast upon the erroneous premise that their deaths were simultaneous. Survivorship vel non of Mrs. Stringer was not alleged in the pleadings.

The answer thereto did not set up the question of survivorship. It did not aver that the damages were nominal or that they were only for the pecuniary loss and loss of companionship to Mrs. Stringer, as the survivor, for a brief period of time. No affirmative defense whatever was interposed thereto. On the contrary, the answer merely said: "Defendant denies paragraph 8 of the declaration." If such issue had been raised, the burden would have fallen on appellant. Daniels v. Bush, 211 Miss. 1, 50 So.2d 563. (Emphasis supplied.)

Lawsuits must have issues. Those issues must be made by the pleadings. Proof must conform to the issues made by such pleadings. Otherwise lawyers, trying a case, will be like mariners, without any form of compass, sailing an uncharted sea. (Emphasis supplied).

It was admitted that the decedent had a life expectancy of thirty years and eight months. There was no proof either as to earning capacity or pain and suffering. Evidence by the plaintiff, without objection, showed that decedent had eight brothers and sisters and that the companionship between him and them was close and fine. Such evidence has considerable probative value if Mrs. Stringer was not the survivor, and if simultaneous deaths are assumed. As we have already said, the question of survivorship is not involved here. (Emphasis supplied). (214 Miss. at 415-416, 57 So.2d at 865).

To suggestion of error (now petition for rehearing) at 214 Miss. 417, 59 So.2d 75 (1952), this Court made the following response:

Even though the proof of the survivorship of the wife would have been competent for the purpose in connection with which it was introduced, That is to say as tending to reduce the amount of the actual damages. . . . (Emphasis supplied). (214 Miss. at 420-421, 59 So.2d at 76).

The statute, as it is applied to this cause, provides that, if Mr. Hall left a widow or children or both, or father or mother or sister, or brother, then suit may be brought by one entitled to recover for all entitled to recover, or by the estate's (Hall's) representative for those entitled to recover, and recovery shall be for all interested parties.

The statute fixes and provides for distribution of the recovery, thus:

If the decedent was a married man (as here), the damages shall be equally distributed to his wife and children, and if he has no children (as here) all shall go to his wife.

If the deceased has no wife or children, the damages shall be distributed to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death.

It seems to be undoubted that, if Mr. Hall left a wife and/or children, then such relative or relatives would be entitled to the damages to the exclusion of the deferred relatives parents, brothers and sisters. Of these preferred relatives, relatives of the first echelon, only his wife survived him; he Left only her. Therefore, she, and she alone, was entitled to any recovery for Mr. Hall's death. Mr. Hall left his wife, if ever, at his death. As will be later herein noticed, any interpretation of the statute to the effect that those surviving who sued, or were in being during the suit, or upon recovery, are those left by Mr. Hall would lead to endless confusion and injustice. Nor does the statute even imply that the beneficiary must survive for a prescribed minimum length of time in order to be classified as left.

Mr. Hall had a wife when he died, and left a wife, even though her survivorship was for only a matter of minutes. At his death before her decease she, at once, had a cause of action for his wrongful death. This cause of action was an item of property, an asset, in her estate, on which she could sue.

Section 91-7-233 authorized Mrs. Hall's administratrix to commence and prosecute any personal action whatever at law or in equity which the testator or intestate might have commenced and prosecuted.

In Scott v. Munn, 245 Miss. 120, 146 So.2d 564 (1962), Munn sued for damages suffered by his wife growing out of an automobile accident. Munn, the plaintiff died, and the suit was revived in the name of the administratrix of his estate, and was prosecuted to judgment. On appeal here, it was held that the part of the action for medical bills and services of the wife survived his death, but that the claim for companionship and consortium was extinguished by his death and was not a subject for revivor in the administratrix.

Kentucky was a wrongful death statute very similar to ours. Its KRS 411.130(2) provides:

(2). The amount recovered . . . shall be for the benefit of and go to the kindred of the deceased in the following order:

a. If the deceased Leaves a widow or husband, and no children or their descendants, then the whole to the widow or husband. . . . (Emphasis supplied)

d. If the deceased leaves no widow, husband or child, then the recovery shall pass to the mother and father of the deceased . . . and if the father is dead and the mother living, the whole thereof shall go to the mother.

e. If the deceased leaves no widow, husband or child, and if both father and mother are dead, then the whole of the recovery shall become a part of the personal estate of the deceased, and after the payment of his debts the remainder, if any, shall pass to his kindred more remote than those above named, according to the law of descent and distribution.

Sharp's Admr. v. Sharp's Admr., 284 S.W.2d 673 (Ky.1955), decided under the statute just above noticed, is in point here. The Sharps, husband and...