147 Mich. 473 | Mich. | 1907
This action was brought to recover damages for the negligent act of defendants causing the death of George Philip, plaintiff’s intestate. The plaintiff claimed to be the lawful widow of George Philip and was appointed administratrix. The case was once considered by us. See 135 Mich. 446. It was there held that it was open to defendants to prove, on the trial of this action, that plaintiff was not in fact the lawful wife of George Philip at the date • of his death. That the statute (3 Comp. Laws, § 10438) limits the re
“ In any action tried for damages heretofore or hereafter sustained by either party to a marriage relation or the issue thereof, arising from the negligent act or omission of another, causing death or injury, it shall be no bar to such action that legal impediment existed to the lawful marriage of either such party at the time the marriage relation was assumed, but a right of action shall exist in favor of such issue and the party to such relation entering the same in good faith and such issue and party shall be entitled to the same damages as though such impediment had not existed.”
The case has been retried, and plaintiff has again recovered judgment. Defendants bring error.
Obviously the question of first importance in the case relates'to the validity of the act in question, as it affects the present case; for, if the defendants’ contention prevails, the objection goes to the whole case. There can be no doubt that the statute of 1905 is broad enough in its terms to cover the present case. Defendants’ counsel contend, however, that this statute is unconstitutional, for the reason that it constitutes an attempt to create a cause of action where none before existed.
Plaintiff’s counsel contend, on the other hand, that the statute in question relates to the remedy, and that it is entirely competent for the legislature to alter, enlarge, modify, or confer a remedy for existing legal rights, and also that the legislature may establish new rules of- evidence to be applied in the trial of existing causes of action. Wethink both contentions well supported. Judd v. Judd, 125 Mich. 228; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120. So, too, the legislature may enact a statute which shall, acting retrospectively, cure informalities in
It is doubtless true that some courts have gone to still greater length, and have, as stated by Chief Justice Holmes, in Danforth v. Groton Water Co., supra:
‘ ‘ Recognized the power of the legislature to call a liability into being where there was none before, if the circumstances were such as to appeal with some strength to the prevailing views of justice, and if the obstacle in the way of the creation seemed small.”
The same learned justice further says:
“ In some such cases there has been at an earlier time an enforceable obligation, in others there never has been one; but in both classes the courts have laid hold of a distinction between the remedy and the substantive right, or have said that a party has no vested right in a defense based upon an informality not affecting his substantial equities, or that there is no such thing as a vested right to do wrong.”
The courts have not avowed a purpose to hold that the legislature may create a cause of action where none before existed. This power has been denied. 8 Cyc. p. 910; Coosa River Steamboat Co. v. Barclay, supra; City of Grand Rapids v. Railway Co., 130 Mich. 238.
Dealing with the question in the abstract, it is difficult to find plausible reasons for sustaining the power of the.
Judgment reversed.