36 N.W.2d 540 | Minn. | 1949
Frederick Anderson and Frances Moore were married in June 1945. They died from methyl chloride poisoning sometime between December 9 and 12, 1945. Frederick was then 19 years old and Frances 18. It appeared that the apartment where the couple had lived for three months was served by a central refrigeration system *150 which used methyl chloride. When inhaled by human beings in amounts of two percent or more by volume, the gas from this chemical is sufficiently poisonous to cause extreme illness and even death. The couple and their cat had shown symptoms of this poisoning when last seen, but the illness was attributed to influenza. After their deaths were discovered December 12, 1945, tests made on the refrigeration plant showed a leak between the evaporator and the expansion valve in the refrigerator box in the apartment occupied by the couple. The proprietor of the refrigeration service company, which had serviced this system for the two years preceding the accident, testified that on December 5 a call was made at the apartment house; that on December 8 six pounds of liquid methyl chloride were added to the apartment house system; and that it did not contain any leak-detecting or odorizing agent, as required by an ordinance of the city of Minneapolis published December 22, 1936. There was also evidence that an employe of the refrigeration service company had worked on the refrigerator box in the apartment in question and had left a pinching tool on the exhaust suction side of the expansion valve, which, if not effective in cutting off the suction, would have permitted pressure in the apartment tank. No contention is made that the evidence of negligence is insufficient to support the verdicts.
The only surviving next of kin of Frances and Frederick Anderson were the widowed mother of Frances and the natural mother of Frederick, the plaintiffs herein. At the time of the trial Mrs. Moore was 48 years old. Mrs. Anderson's age was then 41. It appeared that prior to his marriage Frederick had assisted his parents in operating a grocery store, which was kept open for long hours. Both he and his wife, after their marriage, assisted in the store. This grocery store was sold in August 1945 in order to use the proceeds in the purchase of a restaurant at Annandale, Minnesota. Frederick and Frances were to be partners. Prior to her marriage, Frances had operated the house for her mother while the mother worked. The mother's jobs were not permanent until after the death of her daughter. After the marriage, the young couple lived with *151 Mrs. Moore for a while. During that period, Frances continued to help with the work and in the preparation of the meals.
Both of the young people had been of assistance to their parents. Neither had been involved in trouble of any kind. Frederick enlisted in the navy in July 1943 and received an honorable discharge in March 1945. He was wounded in action in the South Pacific, after which he spent 13 months in hospitals. With the exception of the injury to his foot, the young man had been in good health up to the time of his death.
1. We need not discuss the common-law sophistry which necessitated the enactment by Parliament of Lord Campbell's Act in 1846.2
The territory of Wisconsin had no statute creating a cause of action for death by wrongful act, and so our territorial legislature, in 1851,3 enacted such a statute. In 1905, our statute was amended to create an action by the personal representative for the benefit of the surviving spouse and next of kin, superseding the provision for the benefit of the widow and next of kin. M.S.A.
The defendants here contend that the burden is upon the plaintiffs to show that there was no surviving spouse before the next of kin could recover damages, except funeral expenses, since the damages are to be distributed according to the law of descent as to personal property, which in the case of a surviving spouse without children gives the entire personal property to the spouse. §
"* * * The statutes give a right of action in cases of this character 'for the exclusive benefit of the surviving spouse and next of kin, to be distributed to them in the same proportion as personal property of persons dying intestate.' R. L. 1905, § 4503. The designation of the beneficiary is an essential element of the statute. Stewart v. Great Northern Ry. Co.,
However, as we view the law, when a married couple die in a common disaster and, as here, there is no proof available that one survived the other, the rights of succession to their estates and to recovery under §
In the Willbor case the court said (
"As all three of the testatrices lost their lives in the same disaster, and no fact or circumstance appears from which it can be inferred that either survived the others, the question of survivorship must be regarded as unascertainable, and hence the rights of succession to their estates are to be determined as if death occurred to all at the same moment. Underwood v. Wing, 19, Beav. 459; 4 De Gex. M. G., 633; Wing v. Angrave, 8 H. L. Cas. 183; Wallaston v. Berkely, L. R. 2 Div. 1, Ch. 213; Re Wainwright, 1 Sw. Tr. 257; Scrutton v. Pattillo, L. R. 19 Eq. 369; Coye v. Leach, 8 Met. 371, 41 Am. D. 518; Johnson v. Merithew,
This rule was approved in Young Women's Christian Home v. French,
"The rule is that there is no presumption of survivorship in the case of persons who perish by a common disaster, in the absence of proof tending to show the order of dissolution, and that circumstances surrounding a calamity of the character appearing on this record are insufficient to create any presumption on which the courts can act. The question of actual survivorship is regarded as unascertainable, and descent and distribution take the same course as if the deaths had been simultaneous."
We have cited this case with approval in Miller v. McCarthy,
2. While the assignments of error are insufficient to challenge the verdicts as excessive, respondents have argued the point without challenging the assignments, so the question is before us.
Our decisions make it clear that in actions for wrongful death damages for the potential support of children can be awarded to the parent beneficiaries, even though the children be adults and have been separated from the parents in terms of aid or benefit to the parents at the time of the wrongful death. M.S.A.
On the facts before us, this is a strong case to sustain the damages awarded by the jury. Frederick and Frances were contributing to the operation of the grocery store and were to be partners in the new restaurant. Frances's mother had only periodic employment and might have become dependent on the young people, since she had no husband. The evidence shows that both were still minors and closely connected with the home. Under the circumstances of this case, the marriage had not cut off the parent-child relationship. There was still an economic interdependence between the parents and the young people. Probable contributions are a substantial element in computing damages to parents for loss of children. Annotations, 48 L.R.A.(N.S.) 687; Ann. Cas. 1916B, 533. Other jurisdictions have adopted the same rule — that the parents can recover even if the child has been emancipated. See, Annotations, L.R.A. 1916E, 118, 122; Duzan v. Myers,
3. That a child has married does not annul the liability under §
Orders affirmed.
