Plumley v. Klein

• Decision Date: 19 February 1971
• Docket Number: No. 3,Docket No. 9335,3
• Citation: 187 N.W.2d 250,31 Mich.App. 26
• Parties: Howard PLUMLEY, Administrator of the Estates of Nita Plumley, Deceased, et al., Plaintiff-Appellant, v. Alma KLEIN, Administratrix of the Estate of Claudia Ann Plumley, Deceased, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 250

187 N.W.2d 250

31 Mich.App. 26

Howard PLUMLEY, Administrator of the Estates of Nita Plumley, Deceased, et al., Plaintiff-Appellant, v. Alma KLEIN, Administratrix of the Estate of Claudia Ann Plumley, Deceased, Defendant-Appellee.

Docket No. 9335.

Court of Appeals of Michigan, Division No. 3.

Feb. 19, 1971.

Released for Publication June 8, 1971.

Robert J. Van Leuven, Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, for plaintiff-appellant.

John D. Doyle, John T. Peters, Jr., Kalamazoo, for defendant-appellee.

Before T. M. BURNS, P.J., R. B. BURNS and MUNRO, ^* JJ.

MUNRO, Judge.

On May 22, 1969, plaintiff's deceased children, all under seven years of age, were killed in an automobile accident on Highway M--40 in Van Buren County, Michigan, involving a pickup truck in which they were passengers. The defendant estate's decedent was the mother of the children, wife of the plaintiff, and operator of the pickup truck which was owned by the plaintiff administrator personally. She was also killed in the accident. The other defendants were the owner and driver of the second truck involved in the collision. Plaintiff, as administrator of the estates of his deceased children, filed this wrongful death action against the defendant estate of Claudia Ann Plumley, deceased; David William Rumery, driver of the other vehicle, and Superior Market, owner of the other vehicle, alleging that his four children were injured and killed as a result of the negligence of both his deceased wife and defendant Rumery.

Defendant Alma Klein, as administratrix of the estate of Claudia Ann Plumley, deceased, filed a motion for accelerated or summary judgment asserting that her deceased was the wife of plaintiff administrator and the mother of the deceased children; Further, that by virtue of the relationship between plaintiff, the deceased children, and Claudia Ann Plumley being husband, parent, and child, the defendant was immune from suit.

The trial court granted defendant's motion for summary judgment and entered judgment against plaintiff as to defendant estate of Claudia Ann Plumley from which decision plaintiff takes this appeal.

The issue is: may a father, as administrator and sole beneficiary of the estates of his deceased children, maintain a wrongful death action against the estate of his deceased wife, the mother of the deceased children, arising out of a motor vehicle accident founded on ordinary negligence where both the children and the mother are deceased as a result of the accident?

The Guest Passenger Act is not at issue here, because all of the deceased children were under seven years of age at the time of the accident and, therefore, did not have the capacity of exercising their choice in becoming guest passengers. Burhans v. Witbeck (1965), 375 Mich. 253, 134 N.W.2d 225.

The issue whether the plaintiff may bring this action under the wrongful death statute (M.C.L.A. § 600.2922 (Stat.Ann.1962 Rev. § 27A.2922)), even though the deceased could not have brought such an action, has been most recently ruled on by our Supreme Court in Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343, where the Court, in effect, held that those injured by the death of a person who was killed by the wrongful act of a defendant are not barred from recovering from the defendant under the wrongful death act even though a purely personal immunity of the deceased might have barred suit by the deceased.

The doctrine of law applicable here relates to the intra-family immunity which had in the past held parents to be immune from suits by their children for ordinary negligence and immune from suit as between husband and wife in the field of ordinary negligence. This principle as it affects parent and child was first determined in Michigan in the case of Elias v. Collins (1926), 237 Mich. 175, 211 N.W. 88, and was subsequently, as to inter-spousal immunity, discussed by the Michigan Supreme Court in an exhaustive opinion rendered in the case of Mosier v. Carney (1965), 376 Mich. 532, 138 N.W.2d 343. Elias, supra, was most recently referred to in the case of Rodebaugh v. Grand Trunk...