Walker v. Lansing & Suburban Traction Co.

Grant, J. {after stating the facts). 1. Mr. Walker, the administrator in this suit, brought suit against the defendant soon after the death of his wife, to recover his own personal damages. His declaration in the case was for “medical attendance, nursing, and other expenditures of money in caring for her from the. date of her injury to the date of her death, and the value of her services in the future, and permanent loss of services.” His counsel’s opening statement to the jury was for the same claim. Upon the trial, plaintiff was permitted to amend, substituting himself as administrator, thus seeking to recover under the survival act, rather than for his own personal loss, but evidently upon the assumption that his own loss could be included in his amended declaration. He recovered a judgment upon his amended declaration which was reversed (144 Mich. 685); this court holding that “the effect of the amendment was to permit Mr. Walker as an individual representing one cause of action to get out of court, and Mr. Walker as administrator representing an entirely different cause of action to get into court.” A new trial was ordered and recovery had upon the original declaration for his own personal loss. Subsequently this suit was instituted, and he now claims the right to recover such pecuniary damages as resulted to him from the loss of his wife after her death. The court correctly held that that suit was conclusive evidence that he had not emancipated his wife, and was entitled to the value of her services. No action survived for the loss of services [517] which, belonged to her husband. Berger v. Jacobs, 21 Mich. 215; Tunnicliffe v. Railway Co., 102 Mich. 624 (32 L. R. A. 142). The action, if any survived, was one personal to her, and for damages to which she alone was entitled. The question now presented for determination was not raised in Nelson v. Railway Co., 104 Mich. 582. 2. Act No. 89, Pub. Acts 1905, was in force when plaintiff’s decedent died and at the time this suit was brought. It was repealed some time after this suit was brought, hut before it was tried. It was held in Davis v. Railroad Co., 147 Mich. 479, that its enactment did not affect cases then pending. We also held in Little v. Bousfield & Co., 154 Mich. 369, that its repeal did not affect cases then pending. See, also, Norblad v. Railway Co., (Mich.), 118 N. W. 595 (rehearing pending). Those cases are conclusive against the plaintiff’s contention that the repeal of Act No. 89 restored to the plaintiff the right to damages as the law existed prior to the enactment of Act No. 89. The judgment is affirmed. Blair, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.