MacDonald v. Quimby

85 N.W.2d 157, 350 Mich. 21, 1957 Mich. LEXIS 252

Opinions

Kelly, J.

Plaintiff, as administratrix, commenced an action in the circuit court for the county of Calhoun, alleging that defendants’ negligent acts caused her husband’s death. The petitioner in intervention (appellant herein) contends that the court erred in denying her motion for leave to intervene, filed by her, as mother of the deceased who was receiving support from her son at the time of his death. The question presented has not previously been before this Court.

The wife of deceased filed her declaration on. November 10,1955, and defendants’ answer was filed on November 16, 1955. Petitioner, as mother of the deceased, filed her motion and petition for leave to intervene on December 20, 1955, alleging that she had been receiving support from her son during his lifetime and that she had need of such support; that the administratrix and her attorney refused to recognize this need, advising appellant that if she had any right to recover it would be by her own action in court, although appellant had informed the ad-ministratrix that the statute prevented such action; that a settlement between defendants and plaintiff was imminent and that said settlement would ignore her claim.

Petitioner prayed for an order granting her request to intervene and restraining the plaintiff-ad-ministratrix from taking any action which would jeopardize petitioner’s rights in court.

Defendants answered the petition, denying the mother had the right to intervene because she “is not included among that class of persons entitled to recover for pecuniary injuries resulting from the wrongful death of plaintiff’s decedent.” Plaintiff also filed answer to the petition.

The court entered an order denying petitioner’s motion and petition for leave to intervene on January 16, 1956, and on February 1, 1956, a consent judgment was entered in favor of. plaintiff and against defendants in the amount of $30,000. On the same day the court entered an order for distribution of the judgment moneys. . Satisfaction of the judgment was filed on February 6, 1956, and proof of service of notice of entry of judgment was filed on February 7, 1956.

Appellant asks for the following relief:

“Petition for leave to intervene should be granted, and the recovery had should be held to be for the benefit of petitioner as well as the legal heirs of John R. MacDonald, deceased, in accordance with ‘the pecuniary loss suffered.’ ”

The question presented calls for a construction of PA 1939, No 297, as it amended PA 1848, No 38 (CL 1948, § 691.581 et seq. [Stat Ann 1955 Cum Supp §27.711 et seq.]), and more particularly CL 1948, § 691.582 (Stat Ann 1955 Cum Supp § 27.712), which provides:

“Every such action shall he brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death: Provided, however, That such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence introduced upon the trial of such case. After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.”

Previous to the 1939 amendment, PA 1848, No 38, entitled “An act requiring compensation for causing death by wrongful act, neglect or default,” provided, by section 2 thereof, as amended by PA 1873, No 94, as follows:

“Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action, shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered.” (CL 1929, § 14062 [Stat Ann § 27.712]).

A comparison of the .act before the 1939 amendment with the act after amendment, establishes the following:

(1) The words “next of kin” were not mentioned in the act before amendment, and were inserted 5 times in the amended section.

(2) Approximately the first half of the amended section does not discuss or provide for distribution and in this half there is no reference to heirs-at-law or next of Hn and those entitled to damages are described as a “class (emphasis ours) who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.” The word ■“class” was not used in the act before amendment.

(3) That the title of the amended act adds the words “to prescribe the measure of damages recoverable and the distribution thereof; and to repeal inconsistent acts.”

(4) In the amended act when the words “next of Hn” are used, they are in each of the 5 occasions coupled with the word “spouse,” as follows: “surviving spouse and next of kin;” “surviving spouse and all of the next of kin;” “the surviving spouse and each of the next of kin;” “surviving spouse and next of kin;” and “surviving spouse and the next of Hn.” Neither the words “surviving spouse” or “next of kin” are found in the act before amendment.

(5) The amended act provides that damages for pain and suffering of deceased during the period intervening between the time of injury and death shall be distributed without regard to pecuniary loss but according to the intestate laws. Before the ■amendment, no such provision existed.

The meaning of the words “pecuniary injury” as used in the amended act is definitely established in Baker v. Slack, 319 Mich 703, 714, as follows:

“The remaining question is, what is meant in the 1939 act by ‘pecuniary injury’ to decedent’s surviving spouse or next of kin. Does this include things so speculative and nebulous as the fondly nurtured hope of an inheritance, enhanced by redress for decedent’s wrongful death, but suspended by the tenuous cord of decedent’s possible intestacy? Assuredly not. In the Olney Case (In re Olney’s Estate, 309 Mich 65) we recognized that, beyond compensation to a husband for loss of his wife’s services, the right to recover for pecuniary loss must be predicated upon tbe existence of some next of kin having a legally enforceable claim to support or maintenance by deceased.

“In both the Olney Case and the Grimes Case (Grimes v. King, 311 Mich 399) we pointed out that the provision in the 1939 act for compensation for ‘pecuniary injury’ is identical with that in the old death act. (There is, of course, a change as to method of and persons to whom distribution is made under the 1939 act.) Under the old death act in construing the term ‘pecuniary injury’ recoverable under the act, we have uniformly held that, in addition to the husband’s right to recovery for loss of his wife’s services (or parent’s right to recovery for loss of minor child’s services) after deduction of her maintenance costs, further recovery could be had only for those persons who would have been entitled to inherit deceased’s personal property had he died intestate (under the 1939 act this is changed to surviving spouse and next of kin), and for them only to the extent that deceased was legally obligated to contribute to the support and maintenance of any of them.”

No one disputes the fact that defendants caused pecuniary injury to the petitioning mother. Her right to recovery does not depend on the question as to whether her deceased son made the support payments voluntarily or under legal compulsion, as is established in our finding’ in Judis v. Borg-Warner Corporation, 339 Mich 313, 326, wherein we stated:

“Defendant claims error on the ground of submission to the jury of plaintiff’s claim for loss of decedent’s support, alleging that there was no proof of a fixed legal obligation of decedent to support his father, nor of the father being in need of his son’s support.

“There is sufficient testimony in the instant case to support plaintiff’s claim that his deceased son voluntarily assumed to contribute an average of $25 a month toward plaintiff’s support, without any order requiring him (decedent) so to do, and within the ruling of this Court in Clinton v. Laning, 61 Mich 355, in which we say, p 360, in the converse case of a father voluntarily assuming to support his adult son without an order of the directors of the poor,

“ ‘We think that the voluntary assumption of this duty may fairly be regarded as performing a legal obligation, and that expenditures to a proper extent, within the limit which could be laid down by compulsion, are as valid charges as if they had been compelled, and may be considered as on a similar footing.’ ”

The statute clearly shows that the legislature provided for 1 action for wrongful death, to be commenced by the administrator or administratrix, thus avoiding a multiplicity of suits. We find that the plaintiff-administratrix in this case occupied a trust relationship toward all who had a claim for damages against defendants, and we quote with approval from Wiener v. Specific Pharmaceuticals, Inc., 298 NY 346, 350 (83 NE2d 673); and Janes v. Sackman Bros. Co. (CCA), 177 F2d 928.

In the Wiener Case, the New York court said:

“Not only does the wrongful death statute provide that the amount recovered for such pecuniary injury ‘shall be distributed to the surviving spouse and next of kin’ ([CL 1948, § 691.582] Stat Ann 1955 Cum Supp § 27.712), but, as noted, its companion distribution statute prescribes that, funeral expenses excepted, ‘such proceeds shall not he liable for the payment of any other charges against the estate of the decedent’ ([CL 1948, § 702.115] Stat Ann 1943 Rev § 27.3178 [185], subd [6]).

“There can be no doubt, considering all this, that the damages allowable in Michigan for a pecuniary injury resulting from wrongful death are referable solely to the loss suffered by the persons designated. That being so, the amount of recovery is held subject to a special trust, and the administrator seeking such recovery is, by the same token, a statutory trustee.”

In Janes v. Sackman Bros. Co., supra, it was stated (pp 933, 934):

“As we have pointed out in discussing the earlier issue, the recent Michigan cases, In re Olney’s Estate, 309 Mich 65; and Baker v. Slack, 319 Mich 703, both supra, make it clear that the 1939 amendments to the Michigan death act have created a unitary action for death and survival. The plain wording and obvious intent of the statute is to make an administrator a statutory trustee for the entire unitary action.”

This Court in November, 1938, handed down its opinion in In re Venneman’s Estate, 286 Mich 368, which resulted in legislative action in the following year and the passing of the amendment to the section under consideration in this appeal.

In the Venneman decision, this Court, after stating that the issue presented had not previously been before the Court, regretfully held that the statute required the Court to find that the amount recovered by a widow, as administratrix of the estate of her husband, in a settlement of an action brought under the death act, must recognize the rights of decedent’s adult son by a former marriage to share in the amount so recovered, in spite of the fact that said adult son was in no way dependent upon his father for support, and stated (p 373):

“We are of the opinion that the portion of the statute reading ‘in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered’ merely provides the manner of determining the amount of the damages to be recovered. When the amount of dam-. ages has been determined it is then to be distributed ‘to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate.’ ”

"What does the term “next of kin” signify? 51 CJS 453 answers this question as follows:

“Primarily, and under both the common law and the civil law, the phrase ‘next of kin’ signifies nearest blood relation; and this is the technical, legal, and literal meaning of the term.”

A note in 15 LRA 300 defines “next of kin” by stating:

“The words ‘next of kin’ mean blood relatives. Jones v. Oliver, 38 NC 369. * * *

“The words ‘next of kin’ in a will mean the nearest blood relations and not all those who would take under the statute of distributions. Fargo v. Miller, 150 Mass 225 (22 NE 1003, 5 LRA 690); Swasey v. Jaques, 144 Mass 135 (10 NE 758, 59 Am Rep 65).”

In Clark v. Mack, 161 Mich 545, 549, 550 (28 LRA NS 479), this Court said:

“This brings us to the question: Who were the nearest of kin? In the absence of a contrary intent, a gift to next of kin is a gift to the nearest of kin in the strictest sense, excluding persons who, under the statute of distribution, would be entitled to take by representation. Thus a brother or sister would take to the exclusion of the children of a deceased brother or sister. Remsen on Wills, p 101; 2 Jar-man on Wills (6th ed), p 953 ; 2 Underhill on Wills, § 626; Rood on Wills, § 456.

“The term ‘nearest of kin,’ in the will, signifies those who stand in the nearest relationship to the intestate according to the rules of the civil law for computing degrees of kinship. In this will there are no words suggesting that any one is to take by the right of representation. Bnt that idea is ex-•clnded by the words employed: ‘It shall then be divided among the nearest of kin.’ They were the brother, Walter Coe, and the sister, Ursula G-ilfillin, .surviving at the death of the testatrix. Van Cleve v. Van Fossen, 73 Mich 342. The death of the person whose next of kin is mentioned determines the membership of the class.”

Appellees discount the fact that the distribution part of the amended section contains the term “next ■of kin” 5 times and that this term was not in the section previous to amendment, by stating: “It is our ■contention that heirs at law and next of kin are synonymous terms as used in the statute and as .such are used indiscriminately to mean the same .group of persons.”

Appellees admit that when a layman uses the term '“next of kin” in his will he would “be expected to refer to degrees of kinship and have reference to the meaning of the term according to the civil law,” but contend that an opposite result is reached when the term is used in the statute.

We cannot agree with appellees’ contention that '“heirs at law and next of kin are synonymous terms,” or that for this Court to rule otherwise would delete and make inoperative the words found in the first half of the amended section “that such person or persons entitled to such damages shall be -of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.”

The petitioning mother was of a class who would be entitled to inherit the personal property of the •deceased had he died intestate. The fact that she would not inherit if he died intestate leaving a wife ■and children would not eliminate her from that class.

There is no ambiguity in the words of the statute which provide “the amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereof.” (Emphasis ours.)

Nor is there ambiguity in the provision that “the judge before whom such case was tried * * * shall certify to the probate court * * * the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person.” (Emphasis ours.)

The amendment was brought about because of the Venneman decision, supra, which brought into focus the injustice of taking from the surviving wife part of the damages collected and dividing said damages with a son of the deceased by a former marriage who did not suffer pecuniary damages because of the tortious act.

It is impossible for the writer of this opinion to conclude that in meeting such injustice the legislature created another injustice — namely, to hold blameless, as far as damages are concerned, one who brought to his death a son who was contributing to the support of his mother. Neither can we justify the statement in defendants’ answer to the mother’s petition to intervene that she had no such right because she “is not included among that class of persons entitled to recover for pecuniary injuries resulting from the wrongful death of plaintiff’s decedent.”

The circuit court will enter an order granting the mother’s petition for intervention and setting aside the consent judgment and the certificate. The cause shall proceed either to trial or to judicially approved settlement, with particular attention directed toward the protection of the minor children’s rights and interests.

Dethmers, O. J., and Sharpe, Edwards and Carr, JJ., concurred with Kelly, J.