Sweetland v. Chicago & G. T. R. Co.
| Decision Date | 28 June 1898 |
| Citation | 117 Mich. 329,75 N.W. 1066 |
| Parties | SWEETLAND v. CHICAGO & G. T. R. CO. |
| Court | Michigan Supreme Court |
Error to circuit court, Cass county; Orville W. Coolidge, Judge.
Action by John B. Sweetland, administrator of the estate of Evaline A. Aldrich, deceased, against the Chicago & Grand Trunk Railway Company. There was a judgment on a verdict in favor of plaintiff, and defendant brings error. Reversed.
Geer & Williams (E. W. Meddaugh, of counsel), for appellant.
Marshall L. Howell and Edward Bacon, for appellee.
We do not think that there was any tangible evidence from which the jury had the right to infer that the deceased endured pain and suffering. The two trains collided with terrific force, and many were instantly killed. The witness Allan testified that he reached the telescoped car within three or four minutes after the collision; that he heard wails and groans within; that the car took fire within a minute or two afterwards; that within ten or fifteen minutes they were driven away by the heat of the flames. Plaintiff was a physician, and brother of the deceased. He testified that both the upper and lower extremities of the body were burned completely off, that the upper part of the scalp was entirely denuded, and that her left thigh bone was either burned off diagonally or had been fractured. From his examination of the body, he gave his opinion that death was not instantaneous. It is mere conjecture how long she lived and there is nothing to indicate that she was conscious at any time after the accident, and before death, if death was not instantaneous. If she was not conscious, how can it be said that she suffered pain? Whether death was instantaneous or whether, if not instantaneous, she was conscious after the injury, is purely conjectural. Where one was found, about 10 minutes after the accident with his body crushed, and his bowels disrupted, and he was still breathing, but unconscious, and died almost immediately, without recovering consciousness, held that no damages could be recovered for pain and suffering. Mulchahey v. Wheel Co., 145 Mass. 281, 14 N.E. 106. The court said: "But, as the plaintiff can only recover such damages as she can show were sustained by her intestate, if he became instantly insensible, and so remained until his death, nothing can be recovered for any physical or mental suffering sustained by him." Where a boat struck in the bank of a river, and sank in about 10 minutes, and a passenger was drowned, held that there could be no recovery for mental and physical pains and shock before death; that they were substantially contemporaneous with her death, and inseparable, as a matter of law, from it. The Corsair, 145 U.S. 335, 12 S.Ct. 949. In Cheatham v. Red River Line, 56 F. 248, damages were claimed for suffering while the deceased was struggling in the water before drowning. Held, there could be no recovery. Where one was struggling in the water 10 minutes after being thrown in by the wrongful act of the defendant, held that death was instantaneous. Sherman v. Stage Co., 24 Iowa, 515. See, also, Kennedy v. Refinery Co., 125 Mass. 90; Tulley v. Railroad Co., 134 Mass. 499. The rule deducible from the above authorities, and we think also from sound reason, is that plaintiff must show that there was conscious suffering in order to sustain his suit for damages. It is not sufficient to show that the deceased might have lived a few moments after the accident. We are therefore of the opinion that the verdict based upon this count in the declaration cannot be sustained. Judgment reversed as to this count, and no new trial ordered.
This suit is brought to recover damages for personal injuries caused to the plaintiff's intestate by the collision of defendant's trains through the negligence of defendant; also to recover damages for her death resulting from such collision, and also for loss of personal property. The first count of the declaration is upon the common-law liability for pain and suffering, etc., endured by the deceased prior to death, which, it is claimed, was not instantaneous, and the right of action for which, it is insisted, survives by section 7397, 3 How. Ann. St., and is for the benefit of her estate. Under this count plaintiff had verdict and judgment for $1,000. The second count is for loss of personal property, and for which plaintiff had verdict and judgment for $110. The third count is for the benefit of William W. Sweetland, a brother of deceased, who, it is claimed, was dependent upon her for support, and in whose interest the administrator claims the right to recover under sections 8313, 8314, 2 How. Ann. St. Under this count the jury found in favor of defendant. Defendant brings error.
The provisions of section 7397, 3 How. Ann. St., have been in force since 1838. In 1846 it read: "In addition to the actions which survive by the common law, the following shall also survive; that is to say: Actions of replevin and trover, actions for assault and battery, or false imprisonment, or for goods taken and carried away, and actions for damages done to real or personal estate." This statute was amended by Act No. 113, Pub. Acts 1885, by inserting into the original act the clause, "for negligent injuries to the person." Sections 8313 and 8314 are substantially a re-enactment of Lord Campbell's act, omitting the preamble and third section, which was first incorporated into our statutes in 1848, and was amended in 1873. As amended, it reads as follows:
It will be noticed that until 1885 there was no statute in this state providing for the survival of actions for negligent injuries to the person, and no suit could be maintained for the injury after the death of the injured person for the pain and suffering arising from such injuries. Was it the intention of the legislature under section 7397 to give a right of action for the benefit of the estate in case of death from an injury, and also to allow the heirs to recover under sections 8313 and 8314 for their pecuniary loss? I think not. The fact that the common-law right of action which survives under section 7397 is for the benefit of the decedent's estate, and that the right of action under sections 8313 and 8314 is given for the benefit of the decedent's heirs, can make no difference in the construction which I think must be placed upon these statutes. It was not the intention of the legislature to give two rights of recovery for the same injury which results in death. The act giving a right of action for damages for wrongful death was passed by our legislature several years after the act providing for survival of actions, and was intended to provide the only remedy where death resulted from any wrongful act. If Mrs. Aldrich, the decedent, had lived long enough to bring suit against defendant for injuries etc., and pain and suffering, both past and future, and the jury had awarded her damages, which had been paid, and then she had died from the same injuries so wrongfully inflicted, would it be held that the administrator might maintain another action under sections 8313 and 8314? Or, had she survived her injuries long enough to have settled with the defendant, and had so settled, would it be held that the administrator could maintain an action under these sections? It is generally held that if the deceased had settled for injuries received in his lifetime, or recovered damages in an action, an action cannot be maintained, under Lord Campbell's act, after his death. Cooley, Torts, 309. It must follow, therefore, that if such judgment obtained by her in her lifetime or settlement so made by her is a bar to a recovery by the heirs under sections 8313 and 8314, then a judgment obtained by the heirs for a cause of action accruing to them by survival under section 7397 would be a bar to the right to recover for her death under sections 8313 and 8314. In other words, it is apparent that it has not been the understanding of the courts and law writers that such statutes intended to create two rights of action for the same wrongful act. It is true that repeals by implication are not favored in the law. There is, however, no such repugnance in these statutes that both cannot stand. Section 7397, which provides for the survival of common-law actions for negligent injuries to the person, applies to cases where death results from other causes than the wrongful injury. It seems to me that this is made plain from the terms of the statutes. In Rogers v. Windoes, 48 Mich. 628, 12 N.W. 882, the action was brought for...
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