Stewart's Estate v. Armstrong

• Decision Date: 01 June 1971
• Docket Number: No. 4,A,4
• Citation: 187 N.W.2d 223,384 Mich. 709
• Parties: The ESTATE of Dorothy G. STEWART, Deceased, by Ozila Rhule, Administratrix, Plaintiff-Appellant, v. Carl A. ARMSTRONG, Individually and d/b/a Carl's Bar, Defendant-Appellee. pril Term.
• Court: Michigan Supreme Court

Page 223

187 N.W.2d 223

384 Mich. 709

The ESTATE of Dorothy G. STEWART, Deceased, by Ozila Rhule, Administratrix, Plaintiff-Appellant, v. Carl A. ARMSTRONG, Individually and d/b/a Carl's Bar,

Defendant-Appellee.

No. 4, April Term.

Supreme Court of Michigan.

June 1, 1971.

Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellant.

Cook, Nash, Deibel & Borrello by Leopold P. Borrello, Saginaw, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

On April 17, 1965, Dorothy G. Stewart fell down a flight of stairs in defendant's place of business suffering severe injuries. She died from these injuries on April 18 1965, leaving a husband and two minor children. The administratrix of her estate, who was appointed on July 16, 1968, brought this wrongful death action against the defendant on July 23, 1968, three years, three months and five days after the decedent's death. The defendant moved for an accelerated judgment on the ground that the three year statute of limitations for actions for 'injuries to persons or property' applies to wrongful death actions with the statutory period beginning to run at the date of decedent's death (M.C.L.A. § 600.5805, M.S.A. § 27A.5805(7)). The trial court granted defendant's motion.

On appeal the administratrix contended that since the wrongful death act is not a personal injury action, the three year statute of limitations for 'injuries to persons or property' does not apply. Instead, she argued that since the wrongful death act fails to specify a limitations period and since no statute of limitations specifically mentions actions for wrongful death the general six year statute of limitations for 'other personal actions' should apply (M.C.L.A. § 600.5813, M.S.A. § 27A.5813). She also contended that, if the three year period applies, then a statutory savings provision preserves this action since it gives the administrator an additional two years following the grant of letters of administration to bring an action which 'survives by law,' (M.C.L.A. § 600.5852, M.S.A. § 27A.5852).

In affirming the trial court the Court of Appeals ruled in a Per curiam opinion that the three year statute of limitations on actions for 'injuries to persons or property' applies to wrongful death actions citing Coury v. General Motors Corporation, 376 Mich. 248, 137 N.W.2d 134 (1965). The Court of Appeals also ruled that a wrongful death action does not 'survive by law' but instead is created by law. Rhule v. Armstrong, 20 Mich.App. 573, 174 N.W.2d 292.

We granted leave to appeal because this Court has never specifically held that the three year period of limitations applies to wrongful death actions and because Szydelko v. Smith's Estate, 259 Mich. 519, 244 N.W. 148 (1932) is arguably in conflict with the Court of Appeal's ruling that a wrongful death action does not 'survive by law.'

I.

Michigan's Wrongful Death Act is premised upon a tort theory. The basis of liability under the statute is any 'wrongful act, neglect or default' causing death which would have created an action for damages had death not ensued, (M.C.L.A. § 600.2922, M.S.A. § 27A.2922). Since the Wrongful Death Act fails to specify a limitations period, the general tort statute of limitations contains the proper limitations period for wrongful death actions. The general tort statute of limitations is the three year limitation for 'injuries to persons or property.'

Our examination of the history of the wrongful death statute and prior case law confirms our observation that the Wrongful Death Act is a tort action founded on injury to persons. ¹ Until the law was changed in 1939, recovery for wrongful death in Michigan might be under the Survival Statute or under the Death Act, In Re Olney's Estate, 309 Mich. 65, 14 N.W.2d 574 (1944). The distinction between the two turned on the time of death. If the death was practically instantaneous, the proper action was wrongful death; but, if there was a period of survival, then the action came under the Survival Act. The reasoning behind this distinction was that the Death Act provided a statutory action for pecuniary injury caused to those persons having a beneficial interest in the decedent's life while the Survival Act preserved to the decedent's estate those claims which he held at the time of his death for injuries to his person or property. In Lincoln v. Detroit & M.R., 179 Mich. 189, 196, 146 N.W. 405 (1914), this Court reasoned that as to actions under either the Death Act or the Survival Act, 'Both are dependent on the injury.'

The Michigan Legislature confirmed this theory in 1939 when they amended the Wrongful Death Act by incorporating the Survival Act into the Death Act to form a single grant of recovery, In Re Olney's Estate, 309 Mich. 65, 14 N.W.2d 574 (1944). Since 1939 the Wrongful Death Act has stipulated that all actions for death or injuries resulting in death must be brought under the Wrongful Death Act. The fact which gives rise to the wrongful death action is the wrongful injury to the decedent which causes his death either immediately or thereafter. The old Survival Act recovery for conscious pain and suffering has become an element of damages under the present wrongful death action.

The Michigan courts have assumed for a long time that the three year statute of limitations for injuries to persons or property applies to wrongful death actions, Szydelko v. Smith's Estate, 259 Mich. 519, 244 N.W. 148 (1932). In Coury v. General Motors Corporation, 376 Mich. 248, 137 N.W.2d 134 (1965), although we only held that the statute of limitations for a wrongful death action accrued at the time of death, we clearly indicated that the three year period of limitations applied to wrongful death actions. Today we specifically hold that the three year period is the proper limitations period for wrongful death actions.

II.

The statutory savings provision of M.C.L.A. § 600.5852 (M.S.A. § 27A.5852) reads:

If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which Survives by law may be commenced by or against the executor or administrator of the deceased person * * * at any time within 2 years after letters testamentary or letters of administration are granted. * * * (Emphasis added.)

In arguing that a wrongful death action does 'survive by law,' plaintiff points out Janes v. Sackman Bros. Co., 177 F.2d 928 (C.A.2, 1949) in which the United States Court of Appeals for the Second Circuit interpreted the Michigan savings provision as preserving an administrator's wrongful death action brought within two years of his appointment but more than three years after his decedent's death. Of course, a federal court interpretation of a state statute has no precedential force in a state court but is important as to the persuasiveness of its reasoning.

In Janes the federal court found that the action was premised on the Survival Act element of the Wrongful Death Statute since the plaintiff's decedent, whose cowboy play suit took fire, did not die instantaneously. Arguing that under the old Survival Act this action would 'survive by law' the decedent's death and thus have the benefit of the savings provision the Second Circuit held that incorporating the Survival Act with the old Wrongful Death Act did not change this result.

In Re Olney's Estate, 309 Mich. 65, 14 N.W.2d 574 (1944), of course, held otherwise. There this Court said, at 77, 78, 14 N.W.2d at 579:

'* * * the amendment does not join in a single cause of action two separate causes of action for injuries and death (see Beauvais v. Springfield Institute for Savings, 303 Mass. 136, 20 N.E.2d 957, 124 A.L.R. 611 and annotation) but creates an entirely new statutory cause of action applicable to all cases where death results from wrongful act,...