Susich v. Mich. Consol. Gas Co.

• Decision Date: 15 March 1940
• Docket Number: No. 137.,137.
• Citation: 291 N.W. 26,292 Mich. 612
• Parties: SUSICH v. MICHIGAN CONSOLIDATED GAS CO.
• Court: Michigan Supreme Court

292 Mich. 612

291 N.W. 26

SUSICH

v.MICHIGAN CONSOLIDATED GAS CO.

No. 137.

Supreme Court of Michigan.

March 15, 1940.

Action in tort by John Susich, administrator of the estate of Nicholas Susich, deceased, against the Michigan Consolidated Gas Co. to recover damages for deceased's pain and suffering as the result of injuries received in a fire. Judgment for plaintiff, and defendant appeals.

Affirmed.Appeal from Circuit Court, Wayne County; Henry G. Nicol, judge.

Argued before the Entire Bench.

Angell, Turner, Dyer & Meek, of Detroit, for appellant.

Kenneth M. Stevens, of Detroit, for appellee.

SHARPE, Justice.

This is an action in tort brought by the plaintiff as administrator of the estate of Nicholas Susich, deceased, to recover damages for pain and suffering resulting from injuries received in a fire which occurred on Christmas night, 1937, in the deceased's home. The material facts are not in dispute. The fire was discovered about midnight a few hours after deceased has retired. The fireman and police found the deceased overcome and removed him to the fresh air. At that time he was still alive. His eyes were open and he was bleeding at the mouth. After artificial respiration was attempted he was taken to a hospital, but died on the way.

The declaration filed by plaintiff makes no mention of either the wrongful death act (3 Comp.Laws 1929, § 14061 et seq.) or the survival act (3 Comp.Laws 1929, § 14040 et seq.) although the declaration does state, ‘the horrible pain and suffering suffered by deceased, Nicholas Susich, did not result from any negligence or contributory negligence upon the part of any of the plaintiffs.’

When the cause came on for trial, the defendant company asked the trial judge to give the following instruction: ‘The only injuries for which the plaintiff asks damages in this case are for the pain and suffering of the deceased prior to his death. Under these circumstances if you are of the opinion that the plaintiff is entitled to recover anything at all, such recovery must be limited to what you consider proper compensation for such pain and suffering.’ And the trial judge gave the following instruction: ‘and if you find * * * in favor of the plaintiff by a preponderance of the proof, it is your duty to find for the plaintiff here in such a sum as would reasonably compensate the deceased for the pain and suffering he endured as the result of this fire.’

In his charge to the jury the court made no mention of either the death act or the survival act and gave the jury no instructions as to what facts must be established by the evidence to constitute a cause of action under either of these statutes, nor did the defendant ask the court to give any such instructions. The jury returned a verdict in favor of plaintiff. The defendant company admits that Nicholas Susich's death was the proximate result of negligence on the part of defendant company and was not the proximate result of any contributory negligence on the part of deceased.

Defendant company appeals and contends that where plaintiff sues and the right asserted is dependent upon a statute, that statute must be pleaded, or at least referred to, in the declaration in order that the court and the defendant may be properly advised as to the nature of the plaintiff's alleged cause of action; that it was the duty of the trial court to instruct the jury as to the elements necessary to constitute a cause of action under each of the two statutes involved; and that the failure to so instruct is not excused by the failure of defendant company to request the court to give such an instruction.

It is undisputed that had Nicholas Susich lived he could have brought suit in his own right. The source of plaintiff's right to sue existed at common law. The purpose of the enactment of the survival act was to prevent this right of actionfrom lapsing at the death of the injured party. In such cases the courts take judicial notice of such statutes.

In Anderson v. Matt, 223 Mich. 534, 194 N.W. 599, 601, we said: ‘While plaintiff's declaration did not, by number or name, make reference to the statute regarding the limit of speed within which automobiles may be driven, its allegations made plain that wantonly exceeding the statutory speed limit was a ground of negligence relied upon. A formal reference to the statute would not make the claim clearer and is not required where the declaration contains the averments necessary to bring the case within the statute, of which courts are required to take judicial notice. Hayes v. West Bay City, 91 Mich. 418 . Vide, also, Fuller v. City of Jackson, 82 Mich. 480 ;Sweeney v. Lustfield, 116 Mich. 696 . Confirmatory of the views expressed in preceding decisions the Judicature Act provides (section 12454, 3 Comp.Laws 1915), that-‘No declaration shall be deemed insufficient which shall contain such information as shall reasonably inform the defendant of the nature of ...