Saffels v. Bennett

• Decision Date: 19 June 1981
• Docket Number: No. 5434,5434
• Citation: 630 P.2d 505
• Parties: Minerva Gertrude SAFFELS, as an individual, Appellant (Plaintiff), Frances M. Saffels, Individually, as Personal Representative of the Estate of Loren Harold Saffels, and as Guardian of the Persons and Estates of Heidi A. Kornegay and Shawn L. Kornegay, minors (Plaintiff), v. Jack BENNETT, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 505

630 P.2d 505

Minerva Gertrude SAFFELS, as an individual, Appellant (Plaintiff), Frances M. Saffels, Individually, as Personal Representative of the Estate of Loren Harold Saffels, and as Guardian of the Persons and Estates of Heidi A. Kornegay and Shawn L. Kornegay, minors (Plaintiff), v. Jack BENNETT, Appellee (Defendant).

No. 5434.

Supreme Court of Wyoming.

June 19, 1981.

Richard H. Peek, Casper, signed the brief and appeared in oral argument for appellant.

John C. Brooks of Vlastos & Reeves, P.C., Casper, signed the brief and appeared in oral argument for appellee.

Before ROSE, C.J., RAPER, THOMAS and ROONEY, JJ., and BROWN ^*, D.J ROONEY, Justice.

This is an appeal from a partial summary judgment in favor of appellee-defendant and against appellant-plaintiff Minerva Gertrude Saffels in a wrongful death action, the trial court having made an express determination pursuant to Rule 54(b), W.R.C.P. that there was no just reason for delay and that the partial summary judgment should be entered. The action was initiated by Frances M. Saffels, who was the wife of Loren Harold Saffels at the time he was killed in a two-automobile collision in which he was the driver of one automobile and appellee was the driver of the other one. Appellant is the ex-wife of Loren Harold Saffels and joined as plaintiff in the complaint.

Appellant words the issue on appeal as follows:

"With the Appellant being awarded alimony payments by the District Court in the State of Wyoming in the divorce action between the Appellant and the decedent, said alimony being at the rate of Three Hundred Dollars ($300.00) per month for a period of ten (10) years or until Appellant's death, and Appellant having lost that source of income that she was dependent upon because of the wrongful act of the Appellee causing the death of Loren Harold Saffels, the decedent, is the Appellant a proper party in the action filed under the authority of Section 1-38-102, Wyoming Statutes, 1977?"

We affirm the negative answer given to this question by the trial court.

Appellant was divorced from the decedent on April 20, 1978. There were no children from that marriage. The divorce decree directed payment of the alimony described in the issue here presented by appellant. The trial court found that the alimony ordered by that divorce decree terminated upon the death of the decedent. Implicit in this finding is a conclusion that the award was not a property settlement. Warren v. Warren, Wyo., 361 P.2d 525 (1961); Estate of Kuhns v. Kuhns, Alaska, 550 P.2d 816 (1976); Ball v. Ball, 183 Neb. 216, 159 N.W.2d 297 (1968); Annotation: "Death of husband as affecting alimony," 39 A.L.R.2d 1406 (1955); 24 Am.Jur.2d Divorce & Separation, § 642 (1966).

Appellant does not contend otherwise, but argues that the general rule terminating alimony upon death of the husband does not apply here because the legislature provided in § 1-38-102, W.S.1977, that "(e)very person for whose benefit" a wrongful death action is brought "may prove his respective damages." She contends that the use of these words in a 1973 amendment to this section authorized those other than an heir of the decedent to be a beneficiary of an action for wrongful death, and that she was a proper party in such action.

Prior to the 1973 amendment, the Wrongful Death Act provided:

" * * * Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. Provided, that in the event of the death of the person so liable, such action may be brought against the executor or administrator of his estate; provided further, that if he left no estate within the State of Wyoming, the court may appoint an administrator upon application being made therefor." Section 1-1065, W.S.1957.

" * * * Every such action shall be brought by, and in the name of, the personal representative of such deceased person; and the amount received in every such action shall be distributed to the parties and in the proportions provided by law, in relation to the distribution of personal estates left by persons dying intestate.

In every such case, the jury shall give such damages as they shall deem fair and just. The court or jury may consider, as elements of damages, the amount the survivors failed or will fail, by reason of the death, to receive out of the decedent's earnings, any other pecuniary loss directly and proximately sustained by the survivors by reason of such death including funeral expenses, and further the court or jury may add, as an element of damage, a reasonable sum for the loss of the comfort, care, advice and society of the decedent. The amount so recovered shall not be subject to any debts or liabilities of the deceased; provided, that every such action shall be commenced within two (2) years after the death of such deceased person." Section 1-1066, W.S.1957.

Former § 1-1066 of the act was changed in 1973 by Ch. 139, S.L. of Wyoming 1973, to read as follows:

"(a) Every action under section 1-1065 of the statutes shall be brought by, and in the name of, the personal representative of the deceased person.

"(b) If the deceased left a husband, wife, child, father, or mother, no debt of the deceased may be satisfied out of the proceeds of any judgment obtained in any action brought under the provisions of this section.

"(c) The court or jury, as the case may be, in every such action may award such damages, pecuniary and exemplary, as shall be deemed fair and just. Every person for whose benefit such action is brought, may prove his respective damages, and the court or jury may award such person that amount of damages to which it considers such person entitled, including damages for loss of probable future companionship, society and comfort.

"(d) Every such action shall be commenced within two years after the death of such deceased person."

During revision of the Civil Code in 1977, the legislature made minor wording changes in the act and renumbered it to §§ 1-38-101 and 1-38-102, W.S.1977.

When the Probate Code was revised and amended in 1980, the Wrongful Death Act was taken from the Code of Civil Procedure and made a part of the Probate Code as §§ 2-14-201 and 2-14-202, W.S.1977, 1980 Replacement. Again, only minor language changes were made. As changed, §§ 2-14-201 and 2-14-202 read:

"Whenever the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action to recover damages if death had not ensued, the person who would have been liable if death had not ensued is liable in an action for damages, even though the death was caused under circumstances as amount in law to murder in the first or second degree or manslaughter. If the person liable dies, the action may be brought against the personal representative of his estate. If he left no estate within the state of Wyoming, the court may appoint a personal representative upon application." Section 2-14-201.

"(a) Every such action shall be brought by and in the name of the personal representative of the deceased person.

"(b) If the decedent left a husband, wife, child, father or mother, no debt of the decedent may be satisfied out of the proceeds of any judgment obtained in any action brought under the provisions of this section.

"(c) The court or jury in the action may award such damages, pecuniary and exemplary, as it deems fair and just. Every person for whose benefit the action is brought may prove his respective damages and the court or jury may award the person that amount of damages to which it considers the person entitled, including damages for loss of probable future companionship, society and comfort.

"(d) Every such action shall be commenced within two (2) years after the death of the deceased person." Section 2-14-202.

The Probate Code became effective April 1, 1980, as provided in Ch. 54, § 4, S.L. of Wyoming 1980. This action was filed April 23, 1980, and is therefore subject to the provisions of §§ 2-14-201 and 2-14-202, rather than § 1-38-102, as recited in the issue presented by appellant.

The basic purpose of the 1973 amendment is set forth in Jordan v. Delta Drilling Company, Wyo., 541 P.2d 39, 47 (1975), 78 A.L.R.3d 1215.

" * * * The court or jury under the former practice returned a lump sum award. It was arbitrarily divided according to laws of intestacy without regard to the fact that one heir may have been entitled to more or less than the statutory share. The amendment permits each person claiming a loss to demand and prove his or her individual damage and recover, if shown to the court or jury to be fair and just."

The statute is specific in (1) the requirement that the action "shall be brought by and in the name of the personal representative of the deceased," and (2) the direction that "no debt of the deceased may be satisfied out of the proceeds of any judgment" if the decedent "left a husband, wife, child, father or mother."

Appellant is not the personal representative of the deceased and cannot satisfy that requirement of the statute in that respect.

Assuming arguendo that appellant is correct in her assertion that the obligation for payment of future alimony installments did not terminate upon the death of Loren Harold Saffels, the obligation would then be a debt which could not be satisfied out of the proceeds of a wrongful death judgment inasmuch as decedent left a wife surviving him.

Appellant points to the holding in ...