Leonard MEADS, Plaintiff and Appellant, v. Richard C. DIBBLEE, Administrator of Estate of John Richard Salmon, Deceased, and Merrill B. Colton, Defendants and Respondents.
No. 9080.
Supreme Court of Utah.
April 6, 1960.
350 P.2d 853 | 10 Utah 2d 229
Rich & Strong, Cannon & Hanson, Salt Lake City, for respondents.
Leonard Meads, father of Ellen Meads, a minor child of 17 years, brings this action under
The accident occurred about 10:45 p. m. in the evening of June 10, 1958, on U. S. Highway 91, just east of 5th East Street in American Fork, Utah. Ellen and John, who were engaged to be married, were traveling eastward in a car driven by him on that highway. Behind them traveling in the same direction Colton was driving his trailer-truck when John pulled his car to the right edge of the highway and then turned to his left in front of the approaching trailer-truck where the collision occurred. John and Ellen were both killed by this collision, he died immediately and Ellen died about a week later. Plaintiff claims that John was guilty of wilful misconduct in knowingly turning in front of the trailer-truck, and that Colton was negligent and that such misconduct and negligence proximately caused Ellen‘s death.
At the pretrial conference the trial court granted summary judgment in favor
There is no common law action for the recovery of damages for death by the wrongful act or neglect of another. Such action was created in England in 1846 by the Lord Campbell‘s Act.1 Our territorial legislature adopted two versions of this act.2 We are concerned only with the second version above cited which contains provisions very similar to
These sections do not preserve or perpetuate a liability in favor of a parent or the personal representatives or heirs of the deceased which existed before his death. They create a new liability in favor of the parents or heirs of the deceased, to recover the loss sustained by such parents or heirs by reason of the wrongful death. The reason for the new liability is obvious. The parents and heirs of a person who dies from the wrongful act or negligence of another suffer a direct loss to themselves. The parent is entitled to the earnings of his child, to his society, and help and may receive direct support especially in old age or in case of disability. If the deceased is an adult, the spouse, or children if any, are entitled to support,
At common law there was no tort liability against a tortfeasor‘s estate after his death. Tort liability existing during the tortfeasor‘s life abated upon death, and such liability never comes into existence if it did not exist before his death even though his actions were such as would have created liability had the tortfeasor lived. To remedy this defect
Causes of action arising out of physical injury to the person or death, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, and the injured person or the personal representatives or heirs of one meeting death, as above stated, shall have a cause of action against the personal representatives of the wrongdoer; * * * (emphasis ours).
The first part of this quotation simply says: “Causes of actions arising out of physical injury to the person or death, caused by the wrongful act or negligence of another, shall not abate upon the death of the wrongdoer, * * *” This language merely perpetuates or preserves liability which existed at the time of the death of the wrongdoer. Since
However, there is a second part to
This is a clear, direct and unambiguous statement that the happening of the specified events will give rise to a cause of action. The second provision is not conditioned on the person who is negligently killed dying before the wrongdoer and is in no way limited by the provision in the first part that the liability against the wrongdoer shall not abate upon his death. This is equally true whether the two parts are read separately or together. All of the events which the second provision requires must happen to create liability are present under the facts claimed by the plaintiff in this case. There is no provision which tends to indicate that the liability provided in the second provision must exist prior to the death of the wrongdoer. By using the word “and” to join the two provisions it indicates an intention to add to the liability perpetuated and preserved by the first provision. The language in which it is couched without limitations clearly indicates the creation of an additional liability and not merely perpetuating an existing liability. There is not a word or group of words whether read separately or as a whole which indicates an intention to limit the liability provided for in the second part to liability which existed prior to the death of the wrongdoer.
The language of the second part of this statute, except it deals with liability against the wrongdoer and not with liability for the death of a person wrongfully or negligently killed, is very similar to the language of
As previously noted the first part of
“An action to recover damages for injuries to the person, or death caused by the wrongful act, default or neglect of another, shall not abate by reason of the death of the defendant, and his personal representative may be substituted as defendant. * * * The action shall thereupon proceed to judgment as if the defendant had remained alive * * *.” (Emphasis ours.)
This section is now Rule 25(b) of Arizona Rules of Civil Procedure; it deals with the substitution of parties to actions the same as Rule 25 of the Federal and Utah Rules of Civil Procedure, 28 U.S.C.A. Except that it uses the term “shall not abate” in an entirely different sense, it has no similarity to either the first or second part of our statute.
Courts are said to be disinclined to liberally construe statutes dealing with liability in favor of the parents, heirs or personal representatives of a person who is killed by wrongful act or negligence of another against the personal representatives of the wrongdoer after his death.9 We are required to liberally construe our statutes to effect their objects and promote justice.10 We have been referred to no statute which is similar to our
Respondents do not claim that the legislature intended to limit the liability provided for in this statute to liability which existed prior to the death of the wrongdoer. A liberal construction of this statute to effect its objects and promote justice as well as the direct wording of its last part requires that the statute be not so limited. We reach this conclusion notwithstanding what we said about this statute in Fretz v. Anderson.13
Case is reversed and remanded with directions to the trial court to proceed in accordance with the views herein expressed. Costs to appellant.
CROCKETT, C. J., and McDONOUGH, J., concur.
HENRIOD, Justice (dissenting).
I dissent. The facts in this case are much stronger for application of the language in Fretz v. Anderson, 1956, 5 Utah 2d 290, 300 P.2d 642,1 since here there was no question but what the alleged tortfeasor predeceased the person whose death claim is the subject of this litigation.
Furthermore, it appears to me that the construction of the main opinion to the effect that the first half of one sentence of the statute prevents the pursuit of a death claim while the second half of the same sentence allows it, is quite inaccurate, and illogical.
It seems to the writer that the second half of the sentence over which the majority opinion labors grammatically simply modified the first half by telling us who may be parties plaintiff (1) the injured person or 2) the personal representative or 3) heirs of the decedent), depending on the facts prevailing and the applicability of the statute thereto.
I am unable to see any pertinency in this case of
CALLISTER, Justice (dissenting).
I concur with the views expressed by Justice HENRIOD. The result reached by the majority opinion is perhaps desirable, but should be achieved by legislative enactment.
Notes
Section 78-11-6. “* * * a father, or * * * the mother, may maintain an action for the death or injury of a minor child when such injury or death is caused by the wrongful act or neglect of another; * * *”
Section 78-11-7. “* * * when the death of a person not a minor is caused by the wrongful act or neglect of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain an action for damages against the person causing the death, * * *”