134 Mich. 367 | Mich. | 1903
The plaintiff’s intestate was injured, while riding in a wagon, through a collision with a street car. He was rendered unconscious, in which condition he remained until his death upon the succeeding day. The declaration contained four counts, two under what has been termed the “Death Act,” and two under the ‘ ‘ Survival Act. ” One of each charged ‘ ‘ gross negligence. ” It was not claimed that the deceased was chargeable with contributory negligence. Upon the undisputed fact that deceased lived until the following day, the court held that
The appellant’s counsel raises two questions:
1. Whether he was entitled to recover under the death act.
2. Whether the court erred in his instructions upon the measure of damages.
We see no reason for splitting hairs as to what is meant by instantaneous death, though we can appreciate the difference between a continuing injury resulting in drowning, or death by hanging, throwing from a housetop, etc., and one where.a person survives the wrongful act in an injured condition. There is no occasion for saying that one dies instantly because such survival is accompanied by a comatose condition, or unconsciousness, or insanity, or idiocy. The law draws no such distinction between the normal and abnormal, or the rational and irrational. Either has a right of action. In some cases the intervention of a next friend is necessary, but that makes no difference. See 8 Am. & Eng. Enc. Law (2d Ed.), 866; and see, also, Kellow v. Railway Co., 68 Iowa, 470 (23 N. W. 740, 27 N. W. 466, 56 Am. Rep. 858), where it was held that survival of the injury for a moment is sufficient to permit the cause of action to vest and survive. This case is said to overrule the case of Sherman v. Stage Co., 24 Iowa, 515, Cited in our case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568). We passed upon the question in the case of Dolson v. Railway Co., 128 Mich. 444 (87 N. W. 629). This action survived, and, under that decision, no right of action under the death act accrued.
The court was of the opinion that the damages must be limited to the amount that deceased could have earned during the few hours that he lived after receiving the
“The earning ability of the injured person, and the length of time that he would probably have lived had he not been injured, and the loss he sustained by reason of being deprived, by such injuries, of the ability to labor and earn money during the time he probably would have lived had he not been injured. ”
Counsel for the defendant urge that the damages recoverable in such a case should be only (1) the injury to feelings, pain and anguish, of deceased while he actually lived,- and (2) the loss of earnings during the remainder of the time that he actually lived. This is an unreasonable limitation. We need not discuss the reasoning by which the result is reached. We have long ago held that prospective damages are recoverable. An injured person may recover for loss of earnings for the period during which the evidence fairly shows that he would have lived but for the injury. This rule would apply to one who should live long enough to try his case, though he should die the following day. But defendant’s contention would substitute another rule upon a second trial after his death, should such trial become necessary. Such recovery is based upon the actual damages suffered through the accident. On the first trial the recovery is based upon a probable prospective incapacity for a probable period. After death, such incapacity (and consequent loss) is made certain, where it was only probable before. The period alone remains uncertain. As to pain and mental suffering, it is different. Upon the first trial, the duration of such pain and suffering is uncertain; upon the second, it is definite. As has been already suggested, it is not a new doctrine that prospective damages, when reasonably certain, may be recovered. It is a part of the right that
The judgment is reversed, and a new trial ordered.