*1 Hanni, Hanni, C. of Strong Glen & H. HULL, Wаdsworth, Mecham, Alan F. Wayne Administrator on William S. VanCott, Marilyn McCarthy, & Bagley, behalf of the heirs of Hull Cornwall Silver, Appellant, City, respon- Plaintiff and Salt Lake for defendants and dents. SILVER, Larry Administrator Richard MAUGHAN, Justice: Lynn Silver, the Estate of R. C. W. Sil Inc., Company, Corpora ver and Silco appeal On is a judgment of the district tion, corporation, Defendants and Re granting defendants’ motion for sum- spondents. mary judgment. We reverse and remand for trial. to plaintiff. statutory Costs All No. 15034. U.C.A.1953, references are to except as oth- Supreme Court of Utah. provided. erwise March Silver, 22,1972, On June R. his wife Lynn couple
Marilyn Hull Silver and another piloted by Lynn were in an aircraft flying killing R. all Silver. The aircraft crashed on Plaintiff, board. administrator Silver, Marilyn estate of Hull on behalf of heirs, Mrs. filed a Silver’s Lynn the estate of R. Silver. alleged negligent operation Plaintiff the aircraft Mr. caused the crash Silver and resulting death of Mrs. Silver. granted The trial court defendants’ mo tion summary judgment based on the common law doctrine of marital tort immu nity. recognized This Court that doctrine Gisseman,1 in Rubalcava v. where we stated a wife cannot maintain a tort action purpose husband since “it bе the should of the law protect solidarity family Here, however, are confronted we this case from distinguish with facts which dead, Here, are spouses Rubalcava. both de family the conventional unit has been action has stroyed, and a Thus, there is brought by been heirs. protection, marital harmony no that needs possibility and there is no of collusion. Under 78-11-7 when the death of an negli adult is caused another, gent person act of the heirs or the bring al representative may the heirs Kinateder, J. Douglas Lake City, Salt action for damages against plaintiff aрpellant. Wag- in Van causing the death. This Court
1. 14 Utah 2d
104 refinements, for a few minor the Except interpreted Pac. R. the
oner v. Union Co.2 U.C.A.1953, 78-11-7, new statute, it to create “a cause statute3 and held Sec. present the by loss heirs of action for the suffered Sig- language has as Sec. 3179. the same only by reason of ap- [the action] 2961 and Sec. 3179 both Sec. nificantly of happening comes existence the into II, Comp.Laws of Utah pear in Volume action is not derivative. death.”4 The retroactive, 1888; the latter section Thus, representa- or a personаl when heirs that 2986, possible which is one reason Sec. wrong- bring tive action under the Utah an at repealed the enactment was not earlier ful death such an action not statute5 is that time. interspousal tort the defense of after statehood 3179 was retained Section immunity. 1898, as it 2912, as of Sec. Rev.Stats. dissent, the making rejoinder In a 5, XVI, complied Art. Sec. Constitu- with majority the only observed that need be tion of Utah. the opinion has for foundation 1890, In somewhat incon- while the two impeccable credentials. 3179) (Sec. sistent 2961 provisions Sec. wrongful There an initial dеath en- was them effect, interpreted were in this Court 2961 actment In section the ac- in 1874.6 Railway together Mason v. Union Pacific in tion was limited to those circumstances Company.8 ensued, the party where if had death not injured have been entitled to main- would do not . . The wife or сhildren . damages. tain an action and recover Sec- or father’s cause succeed to the husband’s personal repre- tion 2962 permitted But, action; him. im- of with dies bring sentative of the deceased to the ac- death, a cause of mediately upon his new tion, by was а distributed de- in action arises their favor. The court, cree of probate exclusion gives them a new cause of action. then creditors, damages expressly of were It hus- does not revive or continue the $10,000. limited or of action. . band’s father’s cause 1884, In of part as thе Code Civil Procedure, went into effect.7 Section 3179 . The act caused provided:
This section Mason, in turn death of his death but being When the death of person legal sense as regarded be in a must by minor caused or act inju- causing the the heirs. The injury to another, neglect of his heirs ry dеcedent from defendant’s representatives may act, made actionable. the law causing damages person heirs from his death injury And the to his or if such be person employed act, the statute by caused responsible who is . . .9 also made actionable. conduct, then such other also in concept elaborated on This Court person. every action under this and Pacific R. Wagoner Van Co.:10 Union section, damages may the preceding such running . . The given
be
all
as under
the circumstances
case
may
just.
appellants
be
in this
is founded
cаse
2962,
II,
2961,
Comp.Laws
(1947).
of Utah
2. 112
6.
Vol.
See also
Secs.
Utah,
Halling v. Industrial Comm’n of
71 Utah
1888.
(1927).
263
78P.
II, Comp.Laws
7.
of Utah
See Sec.
Vol.
104-3-11,
3. Sec.
U.C.A.1943.
the 1943 and 1953
revisions of
code
(1890).
identical.
8. 7
24 P.
796
Utah,
4. 186 P.2d
P.
at
24
pp.
at
81-83 of 7
797
At
189, 209,
10. 112 Utah
5. 78-11-7.
P.2d
on the
same unlawful acts
the defend-
rule
exclusion fell
categories.
into two
ant,
damages
but the loss and
suffered
First,
applied
it was
those cases which
them
out of
arise
of the de-
the defense asserted inhered in the tort
ceased. The
has thus
said
itself.
of action vests in
if
heirs-at-law
The statutory
recognizing
basis for
de-
but
ensues
it does not
say
fenses of this character is to
found in
be
*3
rights
modified,
of the
parties
third
are
the word
as used in the stat-
‘wrongful’,
altered,
changed.
contrary,
or
the
it
On
If
ute.
the tortfeasor breached no duty
wrongful
bases
on the
by
death
decedent,
owing to
or
proxi-
if decedent
used in the
wrongful
and
is
sense
contributed,
consent,
mately
thrоugh
neg-
against
deceased,
of
as
the
wrongful
ligence,
acts,
or
own inju-
unlawful
to his
does not include those situations where
ry,
is
to
say
reasonable
death
the
con-
solely
proximately
deceased
or
contemplation
in the
wrongful
of
tributes
his own
negligently to
death.
statute.
thе
[Citations]
[Emphasis
.
added.]11
Upchurch Hubbard,
The court cited
v.
29
wrongfulness,
This
concept
Court’s
of
as
559, 188
Wash.2d
P.2d wherein a defense
set forth
Van
in
Wagoner,
in
combination
wrongful
in a
death action was based on the
legislative determination,
with the
since
host-guest statute.
statehood, make
to
no reference in the stat
ute as to
necessity
the
that decedent should
court
The
stated:
have
action,
been able to
the
he
if
urged
The defense there
is
lived,
had
provides the theoretical
to
basis
character,
statutory in
rather than being
follow the
in
precedent set forth
Johnson v.
upon
based
principles.
common-law
It
Ottomeier.12
does, however, pertain to the tortfeasor’s
here,
case,
the Johnson
as
the issue
care,
any
duty
rather than to
matter of
was
the personal representative
whether
personаl
reason,
disability. For
Up-
this
the wife’s estate
cause
had a
of action
is properly
regarded
church
to be
as fall-
against
the husband’s estate under the
within
ing
category
the
referred to
wrongful death statute.
above.
The
wife
urged
defendant
that since a
The
category
second
of cases which
cannot
sue her husband for
tort commit-
general
rule
exclusion has been
coverture,
ted
her
against
during
such a
which,
applied involves situations in
after
defense is available to the estate
receiving the injuries which later resulted
tortfeasor
in a wrongful
under
rule that
pursued
the decedent
a course
action,
is
to
defendant
entitled
inequitable
of conduct
makes it
which
the benefit of all the defenses he would
recognize a
cause
for
have
had to
had
death.
she lived. The court
that in
view
stated
its
The court
cases where decedent
cited
this exclusionary rule
no application
had
gave an effective
and satisfaction or
release
upon
disability
defenses
personal
based
where the
of limitations had run
sue,
distinguished
as
from defenses which
prior to decedent’s deаth.
tort,
inhere in
are
which
based
inju-
decedent’s course of
after
conduct
The court then considered whether the
ry and before death.
statutory
principle
or a
of law or
language
recognition
The
explained
the decisions in
would warrant
equity
which
applied
disаbility
it had
to sue
personal
announced
wife’s
her husband
page
quoted
wrongdoer
11. This
is also
but
is
to the defense of contrib-
dissent
quoted by
utory negligence.”
the last sentence
was
dissent
on which the
application
rehearing,
deleted in the
for
see
relies
not exist.
dissent
does
218-219,
(1948)
ly disappears with
personal repre-
not transferable
HALL,
(dissenting).
Justice:
sentative, who has a new cause of action.
I
dissent.
respectfully
correctly observes
majority opinion
The
stated that whether the disabil-
The court
is not a deriv-
death action
that
unity of hus-
supposed
is based on the
ity
indepen-
admittedly it is an
ative suit and
pre-
to
public policy
wife or the
band and
heirs seek
whereby
action
dent cause of
home, the
tranquility
peace
serve
and com-
support
for the loss of
upon
ceases to exist
immunity
reason for
for
rather than
panionship of the decedent
death.
injuries
any resultant
decedent’s actual
cases which
The court cited and discussed
However, that is not
suffering.1
pain and
Finally
had reached a similar conclusion.
necessary
analysis
the sole consideration or
the court cited the fact that the
presented.
to meet the issue
from an earlier
had removed the
wrongful death statute
right
original
enactment which had limited the
The
might
action to cases where the decedent
be maintained
provided that
action could
have
an action had he lived.
maintained
death of
causing the
against one
have
if the
could
of Francis v.
Pacific
The case
Southern
she surv
had he or
maintained thе action
(dissent,
7) was not cited:
Co.
footnote
of the stat
Subsequent
ived.2
versions
First,
for the reason we are not bound
provision,
particular
that
ute
deleted
Second,
no Utah cases
federal decision.
rather
court to find that
than
which led the
its conclusion—there
werе cited to sustain
derivative, wrongful death action
being
part
That
any
were not
which could do so.
aptly
majority opinion
a new action.
sup-
the dissent is
quoted by
of Francis
Railroad
Third,
Wagoner Union Pacific
law.13
cites Van
ported only by federal
(1874)
Territory
(10 Cir.)
Chapter
Laws of
13.
Com but fails to observe that act or default be of giving the statute that interpretation, such character that the decedent could court was careful to out point follow have mаintained an action to recover ing language rights that the of the benefici for damages injury his if death had not contingent upon rights aries remain ensued. While it is not a ac- derivative the decedent: tion in ordinary term, meaning of the opinion This court recovery cannot be had unless the dece- legislature did not intend change dent have damages could recovered
rules of substantive law deny injury if he had survived. litigants the to defend on right [Cases cited.]7 ground of contributory negligence. For light the foregoing pronouncements, suit, purposes all that of this Section is evident that all defenses available 104-3-11, statute], U.C.A.1943 [former against heirs, the deceased extend to her grants proceed is a heirs including of interspousal immunity.8 against the wrongdoers subject to the law is settled that a wife can- deceased, defenses available a tort hus- her prosecuted had he lived and the suit.5 band or his Consequently, estate.9 at the Subsequently, denying a petition for time of her Silver Mrs. had no cause rehearing, court narrowed its decision rights and the of her heirs cannot somewhat and substituted the be superior A own. tortfeasor should the last sеntence of the above citation: not be under two different measures “Under the facts of case the *5 obligation injured party to the proceed against wrongdoer —one another to her heirs. the defense of contributory negligence.”6 change court made this whеn atten- If any change is to be made the law it tion was called fact that the former by legislative should be enactment rather language might be construed to be over- than by judicial fiat. broad in deciding issues not involved in that The trial court’s summary judgment for case, i. e. other defenses conceivably availa- defendant should be affirmed. ble against a decedent. That is now issue squarely before and should be
properly decided. CROCKETT, J., ex- concurs views pressed HALL, dissenting opinion death statute was J. interpreted by the Tenth Circuit Court of Appeals preclude suit by heirs where a could have maintained
such suit explained wherein it the principle
as follows: though separate it is a [E]ven
and distinct action which arises on the decedent,
death of the the foundation of
the right of is the original wrong-
ful injury to the decedent. And it is
essential to the maintenance of the action
189,
(1947).
Leary,
112