Dolson v. Lake Shore & Michigan Southern Railway Co.

Montgomery, C. J. This action is brought by Daniel Dolson, Sr., as administrator of the estate of his deceased son, Daniel Dolson, Jr., whose death occurred on the 8d day of October, A. D. 1898, under the following circumstances: Deceased and his half brother, James Davis, were engaged in unloading crushed stone from gondola cars standing on defendant’s team track in the yards in the citj’- of Jackson. The stone was owned by one Robert Lake, a business man of Jackson, and was being unloaded into wagons for him by Davis and deceased. There were three cars of this stone standing upon the track at the north end of the yard, at the usual place of unloading into wagons. Standing on the track next north of the stone cars was a box car loaded with granite, and north of that a short distance, on the same track, was a car loaded with hoops. At the time of the accident, Davis and Dolson had unloaded the north car of stone, and about one-half of the middle car, beginning at the south end. These gondola cars are about 30 feet long, with boxes 3 feet high. About 11 o’clock a. m., yard brakeman French backed down from the south on the team track with an engine and four cars, and told Davis and Dolson that he wanted to take out the car loaded with granite that was on the track beyond them, and that he was going to pull out the stone cars, and for them to pull in their screen. French then coupled to the stone cars, and went south, pulling out the whole string, including the empty stone car and — 446 — the car of granite. As was their custom, Dolson and Davis remained in the half-unloaded car. Dolson stood on the east side of the car, about six feet from the south end, leaning against the side of the car. Davis stood near the south end of the car, on the west side. This was about the position of the men at the time of the accident, a few minutes later. French took the whole train south and through the switch. The switch was then turned, and the train backed north on the main track. The car of granite and the empty stone car were cut off, and left on the main track, and the train again went south through the switch, which was again turned, and set for the team track. The train then backed north through the switch onto the team track, the train then consisting of the two stone cars in the rear, then four cars and the engine. After passing out onto the team track, the train being in motion, French cut off the two stone cars, and let them pass on to the north, at the same time saying to Davis to stop the cars where he wanted them. These two cars slowed up or stopped near the cattle-chute. The testimony is in conflict as to whether the cars did or did not come to a full stop. French, seeing that the two cars of stone were not going to run down the track far enough, signaled the engineer to kick them farther back. . The engineer then went back with the engine and the four cars, and overtook the two cars of stone at or near the cattle-chute. Whether the stone cars had then come to a full stop or were still in motion is uncertain. The fact is, however, that the cars came together when the south end of the half-unloaded car was just opposite the cattle-chute. It is claimed on the part of plaintiff that the stone' cars had come to a full stop,- and that the engine and the four cars struck the south stone car with such great and unnecessary force that Dolson, who was standing back about six feet from the south end of the car, leaning up against and having hold of the side of the car with both hands, bracing himself, was thrown over the south end of the car between the two stone cars, and was run over by the south stone — 447 — car. He was run over by the trucks under the north end of the south stone car, and, to all appearances, drew himself from under the car before the south trucks reached him. His injuries were such as to leave no hope of his surviving them, and he died about midnight of the same day, being a part of the time conscious. The declaration contained two counts; the one under the survival act, so called, and the other under the death act. A recovery was had under each count, in the sums of $1,200 and $800, respectively. The two principal questions argued are: First, whether plaintiff can recover at all; and, second, whether, if entitled to recover, he is entitled to maintain an action under both the survival statute and the death act, and, if not, under which one he is entitled to recover. The instruction of the circuit judge upon the first question was as follows: — 448 — sonably necessary for that purpose, and to have taken the chances of any accident which might result from the use of that amount of speed and force. The use of such speed and force as were reasonably necessary, under the circumstances, to switch the cars, was-- lawful, and the defendant was not negligent in using it. And if the defendant ran its engine and connecting cars against the stone cars with unnecessary speed and force, the employment of such unnecessary speed and force was a negligent act, and constituted negligence, as charged in the first and third counts of plaintiff’s declaration. The question, then, upon this branch of the case, for you to determine,, is, Did the defendant use unnecessary force and speed, under the circumstances, in running its engine and connecting cars against the stone cars, upon one of which the deceased was standing at the time of the accident ? This is a material proposition in the case, and I submit it to-you as a question of fact, to be determined from the evidence bearing upon that subject.” — 447 — “The term ‘negligence,’ as used in this case, means a failure by the defendant to perform some legal duty it owed to the deceased at the time of the accident. It was the defendant’s duty, when it determined to move the car on which the deceased was working, and switch it back to the place where it originally stood, if the defendant’s agents who had charge of and performed that work knew that the deceased was standing on the car during the operation, to do the switching with such care and prurience as a reasonably careful and prudent man would exercise under the circumstances, and to run against the ■cars, on one of which the deceased was standing, with only such speed and force as was reasonably necessary for that purpose under the circumstances. It must be assumed that it was necessary to use some speed and force, or the result could not be accomplished. The defendant had the right to run against the stone cars with sufficient speed and force to move them into their proper positions. In doing so the defendant was performing an act necessary to be performed in the usual course of its business; and the deceased boy, when he chose to remain ■on the car during the operation, is chargeable with knowledge that the defendant would and must use such speed and force in running and switching the cars as was rea448 We think that, as applied to the facts of this case, this instruction was correct. Chadderdon v. Railroad Co., 100 Mich. 293 (58 N. W. 998); Illinois Central R. Co. v. Anderson, 184 Ill. 294 (56 N. E. 331). Upon the question whethdr plaintiff is entitled to recover under both the death act and the survival act, my views have undergone no change since writing the opinion in Sweetland v. Railway Co., 117 Mich. 350 (75 N. W. 1074, 43 L. R. A. 576). On the contrary, my views have been fortified by a re-examination of the cases. Since that case was decided, the supreme court of Wisconsin, in an able opinion, written by Mr. Justice Marshall, and concurred in by the entire court, has held that, under statutes similar to ours, the two remedies are given. Brown v. Railway Co., 102 Wis. 137 (77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579). In addition to the case of Hurst v. Detroit City Railway, 84 Mich. 539 (48 N. W. 44), cited in the Sweetland Case, our attention has been directed to the case of Hyatt v. Adams, 16 Mich. 180, the reasoning of which, in my judgment, supports the contention of plaintiff. The able opinion of Mr. Justice Christiancy can — 449 — not well be epitomized without detracting from the force of that able justice’s convincing reasoning, but deserves a careful reading. It is suggested that the Sweet-land Case decides that two remedies do not exist, and that all that now remains for decision is which remedy is open. I do not so read the Sweetland Case. In that case an action was brought with a count under the survival act and a count under the death act. On the trial the defendant had a verdict under the count on the death act. The plaintiff recovered under the survival act, and defendant alone appealed. The judgment was reversed. The holding, therefore, was that no recovery could be had under the survival act, under the facts of that case. Justices Grant and Moore were of the opinion that the testimony showed that the death was instantaneous, and that for this reason no recovery under the survival act could be had. Justice Long held that, in any case where death results, no recovery could be had under the survival act. In this view Justice Grant concurred, but neither of the other justices assented to this view. Justice Hooker expressed the view that, in any case where the death was not instantaneous, the survival act fixed the'remedy, and no remedy was given by the death act. In this view none of the other justices concurred. The writer of this opinion expressed the view that both remedies existed, and that the enactment of Lord Campbell’s act by our legislature was not intended as a repeal of the survival act. It will be seen that the abstract question whether two remedies were given was not before the court for determination. The question is not different than it would be. if two separate cases were here. In such an event, the question whether a remedy existed under the statute invoked would be presented for decision. If a majority of the court were of the opinion that such a remedy was intended, would it not be applied ? There can be but one answer to the question. True it is that, in determining this question, it would be proper to take into account the question whether — 450 — another remedy was given by another statute, which was intended to exclude the one invoked; and, in deciding this question, any presumption, more or less strong, that the legislature did not intend two remedies, would be proper to be considered. But this would, of necessity, be but a means to an end, or a process of reasoning, the ultimate question being whether the plaintiff, in the particular case in hand, was entitled to the remedy sought. Under no. procedure known to the law can the abstract question of whether two remedies oxist be presented. If in fact two remedies do not exist, the result must be reached by the process of. subtraction,• — i. e., if a majority of the court decide for the exclusion of either remedy, that remedy is to be counted out; but if, on the other hand, a majority declare for the remedy, that remedy exists; if this be true as to both remedies, both exist. I do not understand that any one contends that it is incompetent for the legislature to give remedies to two parties for the same wrongful act of another. There is no declaration in either of the statutes that two remedies shall not exist. The question which must be presented whenever either remedy is sought is whether a statute which in its terms gives such remedy is rendered inoperative by the provisions of the other statute. The survival act was first passed. What logic is there in the position of one who asserts that the death act did not repeal the survival act, but that the survival act alone applies to a particular case, and who, notwithstanding this view, holds the exact reverse, i. e., that the death act did repeal the survival act, and that the death act alone applies to the case ? It is impossible for me to find that this court has decided that two remedies do not exist, or that it should.so decide until a majority of the court say that one or the other of the remedies sought is excluded by the other. This has not yet been done. I understand, however, that a majority of the court are of the opinion that it should be held that, in a case where the death is not instantaneous, there can be no recovery — 451 — under the death act, so called; 3 Comp. Laws, § 10427. A suggestion is contained in the opinion of Mr. Justice Hooker in this case that the language of the section in question that, “whenever the death of a person 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,” etc., is to be construed as excluding a recovery in all cases where a cause of action at any time vested in the injured party. I do not so read the statute, but construe it, as indicated in my opinion in the Sweetland Case, to mean that where, at the time of the death of the injured party, no cause of action existed or remained, the remedy under this act would be excluded. ■ As was said in that case, if the injured party had recovered damages or settled for the injury, he would not, at the time of his death, have been entitled to maintain the action “if death had not ensued.” See, upon this subject, Littlewood v. Mayor, etc., of New York, 89 N. Y. 24 (42 Am. Rep. 371); Legg v. Britton, 64 Vt. 652 (24 Atl. 1016). Clearly, the language of the act, limiting the recovery to cases in which the injured party would have been entitled to maintain an action, should be construed to define the character of the injuries and the circumstances under which they were inflicted, and the words “if death had not ensued” have relation to the time when the action, under section 10427, is planted. Referring to the construction which is placed upon this •statute in the opinion of Mr. Justice Hooker, it is stated in his opinion in the Sweetland Case that it is possible that this construction is foreclosed by decisions heretofore made by this court. I think I have pointed out in my opinion, both in this case and in the Sweetland Case, that such construction was so foreclosed; and, if it was foreclosed in 1898, it is foreclosed in 1901. I think the judgment should be affirmed. — 452 — Hooker, J. In the case of Sweetland v. Railway Co., 117 Mich. 329 (75 N. W. 1066, 43 L. R. A. 568), a majority of the court expressed the opinion that the law does not permit recovery by an administrator under both of the statutes which are there called, respectively, the “death” and “survival” acts. While we entertained different views upon these statutes, the result was that the judgment was reversed. The question is now before us again in a case where recovery has been had upon both statutes. It has always been the policy of the common law not to permit recovery for causing death, nor to permit the survival of actions for personal injuries. While Michigan was still a territory, the rule as to the survival of actions for personal injuries was abrogated by the passage of the survival act, which covered assault and batteries. Under it one receiving a mortal wound had a cause of action which would survive. As yet no action was given for causing instantaneous death, though death following as a consequence was practically covered in assault and battery cases by the survival act, as stated. In 1848 the death act was passed, and it gave to the administrator a right to recover for the benefit of the widow and next of kin in certain cases. This was not an absolute right to the widow and child to recover, each for herself or himself, the damages actually suffered, which would have been a simple provision to make. It was hedged about by limitations. Apparently the legislature was not yet prepared to permit an administrator to recover for the death of the intestate such sum as could be wrung from a jury. It was only when it could be shown that the widow and next of kin had suffered pecuniary injury. Again, they were not permitted to bring several suits; all must be recovered through the administrator. This implies, to my mind, that it was intended that all damages should be recoverable in one action. As the law then stood, that was the only recovery that could be had, after death, where the death was caused by negligence, because the right of action for such did not survive. But, under the plaintiff’s — 453 — theory, a double recovery might be had when death resulted from assault and battery. Aside from the improbability that the legislature would intentionally give the double remedy in one class of cases and not in the other, or that it repealed the survival act as to assault and batteries by implication, we find the language of the act limiting the right of action to a certain class of cases, viz., cases where the act, neglect, or default would, if death had not ensued, have entitled the injured party to maintain an action. We find, then, that, where death prevented an action from accruing to the deceased, this act gave a remedy, and in no other case; in other words, where the action was not prevented from accruing, it did not give a remedy. This section plainly proceeds upon the theory that death has prevented a right of action from vesting. Such would not be the case where a person lived after the injury, and it would be the case where the death was instantaneous. If this was not the legislative intent, why was this language inserted in the statute ? It seems clear to me that this act was designed to cover cases of instantaneous death, where there was no other remedy, and that it was not designed to give a double remedy in cases where assault and battery caused death, in which cases the survival act already furnished a complete remedy, giving to the next of kin all of the redress which the deceased would have been entitled to, and not making it dependent upon or limited to an amount of actual- contribution to his or her support. It may be said that this view left no redress to -the widow and next of kin for negligent homicides not instantaneous, because such did not survive under section 10117, 3 Comp. Laws, as originally passed, and would not be covered by this construction of section 10427. This is true, but it does not justify our disregarding a plain condition upon which the right of action was made to rest, viz., that the death prevent a right of action accruing to the deceased. Subsequently this omission was supplied by the insertion in the survival act of the words “for negligent injuries to — 454 — the person.” So, as the law now stands, the right of action is readily determinable. If the death be not instantaneous, the administrator recovers under the survival act the full measure of damages for the benefit of the next of kin. If it be instantaneous, he recovers under the death act, for the same persons, a limited amount of damages, viz., for such pecuniary injury only as they can be shown to have suffered. There has never been a time when the common law has. deemed it wise public policy to permit speculation out of homicides, and the States have been conservative in permitting recovery for the death of a person. In New York a limit is placed upon the amount recoverable under the death act. I feel convinced that in our own State the policy has been to carefully limit recovery to actual pecuniary injury, and to one action, and not to permit it in those cases where the survival act is available. The sections of the statute are quoted in the opinion of the writer in the Sweevland Casé. To my mind this is the only con- ' sistent view to be taken of these statutes. It furnishes a. plain and reasonable rule, and, where there is doubt which act is applicable,, a joinder of counts will afford ample protection. It is supported by the decisions of Maine and New Hampshire, as shown in the opinion in the Sweet-land Case. There are many considerations mentioned in that opinion which are not repeated here, which are cogent reasons for this view, an important one being the effect on pending cases, which the survival act certainly wás intended to save, but which fall by the death under another construction, leaving a recovery under the death act a. doubtful contingency. , The judgment should be reversed as to the count upon the death act, and no new trial ordered, and affirmed to. the extent of the recovery upon the count based on the survival act. We feel justified in denying costs to either party.