In Re Olney's Estate

North, C. J. I concur with Mr. Justice Sharpe in affirming the judgment in favor of Edwin E. Ben-nett, but I am not in accord with my Brother’s holding that there can be no recovery in the suit brought by Edwin E. Bennett as administrator of the estate of Margaret B. Bennett, deceased. Act No. 297, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14061 et seq., Stat. Ann. 1943 Cum. Supp. § 27.711 et seq.), does not repeal, but instead only amends, our so-called death act. 3 Comp. Laws 1929, § 14061 et seq. (Stat. Ann. § 27.711 et seq.). Nor does the 1939 act repeal our so-called survival statute (3 *81 Comp. Laws 1929, § 14040 et seq. [Stat. Ann. § 27.684 et seg.]), except in so far as section 14040 is “inconsistent” with the 1939 act. And we do not find section 14040 at all inconsistent with any provision in the 1939 act, except that section 1 of the latter act provides: “All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.”- Section 14040 is still part of our statutpry law, and this section reads: “In addition to' the actions which survive by the common law the following shall also survive, that is to say, actions of replevin, actions for the conversion of property, for deceit, for assault and battery, for false imprisonment, for negligent injuries to persons, for damages done to real and personal estate, and actions to recover real estate, or any interest therein, where persons have been induced to part with the same through fraudulent representations and deceit.” It follows that our statutory provisions 'for survival of actions still continues in force. And there is survival regardless of whether the death is that of the injured party, in which event the action may be brought by the representative of the estate of the deceased (Racho v. City of Detroit, 90 Mich. 92; Rouse v. Michigan United Railways Co., 164 Mich. 475); or whether the death is that of the tortfeasor (Norris v. Kent Circuit Judge, 100 Mich. 256; Ford v. Maney's Estate, 251 Mich. 461 [70 A. L. R. 1315]). Above we have stated that the 1939 act does not repeal the death act (3 Comp. Laws 1929, § 14061 et seq., Stat. Ann. §27.711 et seq.). Instead, section 14061, which provided the statutory right of action in death cases, was literally reenacted, with the modifications about to be noted, in section l of Act No. 297, Pub. Acts 1939, which reads: *82 “Be it enacted by the senate and house of representatives of the State of Michigan, whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover .damages, in respect thereof, then.and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and1 although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.” The italicized words in the above section disclose the only changes made by the 1939 re-enactment. Surely the right to bring an action in a death case was not repealed by this re-enactment in identical words of the former statute. Instead the obvious purpose of the 1939 act was to enable a person to bring his action under this statute regardless of whether-there was instantaneous death or survival of the injured person, and to provide to what person or persons the damages recovered should be “distributed. ’ ’ Martinelli v. Burke, 298 Mass. 390 (10 N. E. [2d] 113, 112 A. L. R. 341), cited and quoted in my Brother’s opinion, is not in accord with the law of this State. The Massachusetts statutory provision on which decision turned was: “ A person who by his negligence of by his wilful, wanton, or reckless act * * * causes the death of a person * * * shall be liable.” In substance the Massachusetts court held that because the statute gave the right of action only against the “person,” as distinguished from his estate, death of the tortfeasor *83 terminated the right of action. The Michigan statute both before and since its re-enactment in 1939, like the Massachusetts statute,' provides a right of action against “the person who, or corporation which” commits the tort for which suit' is brought. But in Ford v. Maney’s Estate, supra, Ave passed squarely upon and rejected the contention “that the right of action abated” upon the death of the tortfeasor. We there said: “A cause of action for negligent injuries, which accrues in the lifetime of a party, whether person injured or tortfeasor, survives his death. Rogers v. Windoes, 48 Mich. 628; Norris v. Kent Circuit Judge, 100 Mich. 256; Love v. Railroad Co., 170 Mich. 1. “ 'When the law declares that a cause of action shall survive, it is equivalent to saying an executor may sue upon it.’' Rogers v. Windoes, supra. “It is also equivalent to saying that the estate of the deceased tortfeasor may be sued upon it. # * * ‘ ‘ The cause of action consisted of the duty of care owed by Mr. Maney to plaintiff, its breach, and the consequent injury to plaintiff. 45 C. J. p. 661; Robertson v. United Fuel & Supply Co., 218 Mich. 271. All elements were complete during the lifetime of Mr. Maney and, therefore, a cause of action vested in plaintiff, and, under our statute, survived.” See, also, In re Beierdorfer’s Estate, 297 Mich. 592; and In re Chamberlain’s Estate, 298 Mich. 278. Our conclusion being that the administrator’s cause of action surAdves, consideration must be given to appellant’s claim that damages adjudged in the amount of $5,000 were excessive. In this connection the question arises as to what elements of damages may he recovered under the 1939 act. This act specifically divides the damages recoverable into three classes. These classes are damages (1) “with *84 reference to the pecuniary injury resulting *' * *; ” (2) “for the reasonable medical, hospital, funeral and burial expenses • * * (3) “for the pain and suffering. ’ ’ 1. The surviving husband had no legally enforceable claim to support or maintenance by deceased, nor does this record disclose such claim as to any other person. But the surviving husband lost the services of Mrs. Bennett, and1 the value thereof less reasonable cost of her maintenance may be recovered in this action. Gorton v. Harmon, 152 Mich. 473 (15 Ann. Cas. 461). It should be noted that recovery in the cited case was under the provision of the death act that there could be recovery “for pecuniary loss, ’ ’ and that the same provision is embodied in the 1939 act. This element of damages is recoverable in the instant case. 2. The surviving husband was legally liable for the payment of his wife’s “reasonable medical, hospital, funeral and burial expenses;” but since he has recovered for' these items in the suit brought in Ms own right, there can be no recovery for them in this action. 3. There seems to be no room for doubt that under (3) above quoted there can be recovery in this action,“for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and Ms (her) death.” This action is statutory and the elements of damage are fixed therein; and under the circumstances of the instant case the only recoverable damages are for loss of the wife’s services and for pain and suffering. On this appeal the question is presented as to whether the judgment for $5,000 damages for these" elements was excessive. *85 As to loss of services the following are among the pertinent facts. At the time of the accident Mr. and Mrs. Bennett were respectively 71 and 70 years old, and the expectancy of each was substantially eight years. Each was in good health. They occupied as their home and together operated a hotel at Hubbard Lake in Alcona county. It was a summer resort hotel, having 14 bedrooms, and located 12 miles from a railroad station. There were four or five tourist cottages in connection with the hotel. Mr. Bennett did the clerical work and1 the buying. Mrs. Bennett had supervision of employees and took general charge of carrying on the business. She was a good cook. Without indicating whether he meant during the whole year or only during the season of activity, Mr. Bennett testified Mrs. Bennett’s services were worth $100 per month. As to pain and suffering, the record discloses that Mrs. Bennett lived six days after, the accident. The physician who attended her at the hospital testified: “I found her in shock; she had extensive laceration of the head and face, her left ear was severed almost from the head; injuries to chest and fracture of the left leg and injury to her spine. She had an abdominal injury. She died from these injuries. * * * She had a compound fracture of the left leg. * * * She had two blood' transfusions. She was conscious following the injuries all the time while she was in the hospital. Her injuries were certainly painful and she complained of pain. They required a narcotic. * * * Concerning her internal injuries, there was no operation performed, but she was troubled with great distention of gas and abdominal distress. * * * The left side of her face and her whole forehead were badly lacerated and the ear almost severed. At first she was dazed, which lasted until the next day. ’ ’ *86 By our review of the record we1 are constrained to hold that damages adjudged in the amount of $5,000 were excessive. Without reviewing all the pertinent phases of the record we note the following. The period during which plaintiff might hope to benefit by the services of his wife was limited by both his and by her expectancy of approximately eight years. It must be considered that Mrs. Bennett was 70 years of age at the time of the accident and it is fair to presume that her ability to render services of the character noted quite probably would not continue at her advanced age for the full remainder of her life. Also that the trial judge in reaching his determination made no allowance or deduction for the cost of the wife’s maintenance during such period as the services might be rendered. See Gorton v. Harmon, supra. As to the amount to be awarded for pain and suffering we cannot overlook the'fact that Mrs. Bennett survived the accident only six days and that during’ the first of this period she was in a “dazed” condition. Under this record the maximum amount of damages should not have exceeded $3,000. Mr. Justice Reid has written for reversal in each of these two cases, placing decision on the ground that plaintiff was guilty of contributory negligence as a matter of law. Our review of the record satisfies us that' on this issue' a question of fact was presented. The circuit judge, hearing the case without a jury, decided the issue in favor of plaintiff. The record sustains that finding. Neither . case should be reversed on that issue. Judgment entered in the case of Edwin E. Bennett in his individual right should be affirmed. In the case wherein Edwin E. Bennett as administrator of the estate of Margaret B. Bennett, deceased, is plaintiff, the judgment will be reversed and a new *87 trial ordered unless within 15 days after our decision herein a remittitur of damages in the amount of $2,000 is filed by the plaintiff, in which event judgment for the remaining amount of $3,000 will be affirmed. No costs should be awarded on this appeal to either party for the reason that neither has fully sustained the position asserted in this Court. Starr, Wiest, Btjtzel, Btjshnell, and Boyles, JJ., concurred with North, C. J.