Stang v. Hertz Corp.

• Decision Date: 23 March 1970
• Docket Number: No. 8979,8979
• Parties: Sister Mary Assunta STANG, Personal Representative for Catherine Lavan, Deceased, Plaintiff-Appellant-Respondent, v. HERTZ CORPORATION, a corporation, and Firestone Tire & Rubber Company, a corporation, Defendants-Appellees-Petitioners.
• Court: New Mexico Supreme Court

Page 14

467 P.2d 14

81 N.M. 348

Sister Mary Assunta STANG, Personal Representative for Catherine Lavan, Deceased Plaintiff-Appellant-Respondent, v. HERTZ CORPORATION, a corporation, and Firestone Tire &amp Rubber Company, a corporation Defendants-Appellees-Petitioners.

No. 8979.

Supreme Court of New Mexico.

March 23, 1970.

Smith, Ransom & Deaton, Richard E. Ransom, William G. Gilstrap, Albuquerque, for appellant

Rodey, Dickason, Sloan, Akin & Robb, James C. Ritchie, Robert G. McCorkle, Modrall, Seymour, Sperling, Roehl & Harris, Allen C. Dewey, Peter J. Broullire, III, Albuquerque, for appellees.

OPINION

TACKETT, Justice.

Petitioners seek a review of a decision of the Court of Appeals, which reversed the trial court in a case arising under our Wrongful Death Act, § 22--20--1 through 22--20--3, N.M.S.A., 1953 Comp. The facts are adequately set forth in the opinion of the Court of Appeals in Stang v. Hertz, Corp., 81 N.M. 69, 463 P.2d 45 (Ct.App.1969), and will not be detailed herein, except to state that decedent was a nun, a member of the Sisters of Charity, and had taken the simple but perpetual vow of poverty upon entering the Order. She died some fifteen days after receiving injuries in an automobile accident.

The questions for decision before this court are: (1) If there is no pecuniary injury to the statutory beneficiaries, may there be recovery for the wrongful death? (2) May the personal representative recover for pain and suffering, and medical and related care, from the injury until death?

Sections 22--20--1 and 22--20--3, supra, of the Wrongful Death Act provide:

(§ 22--20--1)

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and 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. (Emphasis added.)

(§ 22--20--3)

'Every such action as mentioned in section 1821 (22--20--1) shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased: Provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of the deceased child, but shall be distributed as follows:

'First. If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife and a child or children or grandchildren, then equally to each, the grandchild or grandchildren taking by right of representation; if there be no husband or wife, but a child or children, or grandchild or grandchildren, then to such child or children and grandchild or grandchildren by right of representation; if such deceased be a minor, childless and unmarried, then to the father and mother, who shall have an equal interest in the judgment, or if either of them be dead, then to the survivor; if there be no father, mother, husband, wife, child, or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.' (Emphasis added.)

It is to be noted that § 22--20--2, N.M.S.A., 1953 Comp., 1969 Pocket Supp., is a statute of limitation, which sets forth the time limit for instituting actions under the Wrongful Death Act, and also provides that the cause of action accrues as of the date of death.

The term 'personal representative' is used simply to designate the agency, the trustee, or the person who may prosecute this particular character of statutory action. Henkel v. Hood, 49 N.M. 45, 156 P.2d 790 (1945). If there be none of the kindred named in the statute, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons. Section 22--20--3, supra. This statute certainly contemplates that a wrongful death action shall not fail merely because there is absent pecuniary injury to a statutory beneficiary. Henkel v. Hood, supra; Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936).

We find in Henkel v. Hood, supra, 49 N.M. at 51, 156 P.2d at 794 the following:

'Thus, the personal representative who makes a recovery under the Act, * * * serves as a trustee, a 'statutory trustee,' for discoverable and identifiable beneficiaries in the line of named kinship or descent. Nevertheless, by express mandate of the Act, he is none the less a trustee for the state and for estate creditors where none of the named kin were left, or the line of descent runs out and exhausts itself in the fruitless search for an heir. This is rendered clear by the italicized language of the statute quoted, supra.'

Defendant Firestone contends that damages for wrongful death are not recoverable if there is no pecuniary injury to at least one statutory beneficiary. Defendant Hertz contends that, in the absence of pecuniary injury to a statutory beneficiary, there can be no recovery of substantial damages. Thus, Hertz at least recognizes the right to sue for wrongful death, but would limit recovery to only nominal damages. Even though authority may be found in support thereof, we do not agree with those contentions, as § 22--20--3, supra, clearly permits recovery by other than a statutory beneficiary, and recovery may be had even though there is no pecuniary injury to a statutory beneficiary. Damages are recoverable by proof of the worth of the life of the decedent, even though there is no kin to receive the award. Cerrillos Coal Railroad Company v. Deserant, 9 N.M. 49, 49 P. 807 (1897).

Justice Hudspeth, in a well-reasoned opinion in Hogsett v. Hanna, supra, discussed in detail the statute under consideration here and arrived at the conclusion that a right of action under the Wrongful Death Act is not dependent or conditioned upon the survival of any kindred. The statute, § 22--20--1, supra, allows a cause of action against the culpable party 'in every such case.' With this we agree.

The statutes allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended by them, also, to promote safety of life and limb by making negligence that causes death costly to the wrongdoer. Hogsett v. Hanna, supra; Trujillo v. Prince, 42 N.M. 337, 78 P.2d 145 (1938); Tauch v. Ferguson-Steere Motor Co., 62 N.M. 429, 312 P.2d 83 (1957). See also, Whitmer v. El Paso & S.W. Co., 201 F. 193 (5th Cir. 1912); McKirdy v. Cascio, 142 Conn. 80, 111 A.2d 555 (1955).

The cases of Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966 2d appeal), and Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968 3d appeal); Duncan v. Madrid, 44 N.M. 249, 101 P.2d 382 (1940); and Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257 (1938), indicate that the measure of damages for wrongful death is the worth of life of decedent to the estate.

The reasoning of Justice Watson in the withdrawn opinion in Valdez v. Azar Bros., 33 N.M. 230, 264 P. 962 (1928), quoted in Hogsett v. Hanna, supra, seems the more reasonable construction of our statute to the effect that substantial damages are recoverable without proof of pecuniary loss.

We are to consider the language of the Act as a whole. State ex rel. Clinton Realty Co. v. Scarborough, 78 N.M. 132, 429 P.2d 330 (1967); Winston v. New Mexico State Police Board, 80 N.M. 310, 454 P.2d 967 (1969). We have not only considered the reference to pecuniary injury, but have also considered the reference in § 22--20--1, supra, to liability 'in every such case.'

The statute must be considered so that no word and no part thereof is rendered surplusage or superfluous. State v. Thomson, 79 N.M. 748, 449 P.2d 656 (1969); Martinez v. Research Park Inc., 75 N.M. 762, 410 P.2d 200 (1965); State ex rel. Clinton Realty Co. v. Scarborough, supra. To hold that pecuniary injury '* * * to the surviving party or parties entitled to the judgment * * *' is a prerequisite to a recovery of damages for wrongful death would make superfluous the provision of the statute allowing recovery where there is no surviving kin. Section 22--20--3, supra.

We next turn to the question of allowing recovery for decedent's pain and suffering and medical and related care from injury until death. We here hold that a recovery may be had by the 'personal representative,' even though there is no statutory beneficiary. If we were to hold that recovery may be had in one aspect and not in the other, it would be most illogical. The defendant is liable 'in every such case.' The liability is for 'damages.' Section 22--20--1, supra. The statutory language, while it does not say so specifically, nevertheless authorizes recovery for pain and suffering, and for medical and related care, between the time of injury and death, the same as could have been recovered by an injured party where death does not ensue. Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961). Compare, Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963)...