(dissenting). I agree with Justice Souris that this accelerated judgment was accelerr ated too much for any semblance of due process. If not a glaring part, the judgment borders at' least a developing picture of summary judgment gone mad in our metropolitan circuit.
No thought seems to have been given to the rather elementary principle that one of several beneficiaries of a right of action for wrongful death may not, as claimed defensively here, destroy the statutory right or do more than eliminate himself — in whole or in part — as beneficiary and distributee of such right. As said by the Brethren writing thus far, this decedent’s widow and this decedent’s personal representative are distinct and .separate entities so far as the pleaded right is concerned. One is a statutory trustee of and for all of the statutory beneficiaries (MacDonald v. Quimby, 350 Mich 21). The other, as of the time the decedent expired and as of the time of redemption under the workmen’s *250compensation law, was simply one of those beneficiaries.
There also is a little matter of damages that may be recovered on behalf of the decedent’s estate. These are statutorily allowable to the decedent’s personal representative as such, for the benefit of the estate (CL 1948, § 691.582 [Stat Ann 1959 Cum Supp § 27.712]); PA 1961, No 236, § 2922 (CLS 1961, § 600.2922 [Stat Ann 1962 Rev § 27A.2922]), amended by PA 1965, No 146 (Stat Ann 1965 Cum Supp § 27A.2922), and are not subject to release or other acquittance by anyone excepting upon proceedings had in conformity with the cited act of 1965 or its derivative, PA 1965, No 181, amending CL 1948, § 702.115 (Stat Ann 1965 Cum Supp § 27.3178[185]).
One fact in particular stands out from this record. It should have dictated prompt denial of this motion for accelerated judgment. It is that the parties are in agreement that plaintiff’s complaint alleges what all three courts must presently accept as true, that is:
“Plaintiff averred that decedent left surviving not only his wife (plaintiff and administratrix), but also a. son and daughter, who sustained damages as a result of defendants’ negligence.”
Ayers v. Genter, 367 Mich 675, and Moran v. Nafi Corporation, 370 Mich 536, cited by the courts below in support of the judgment as entered and affirmed, are not in point. Both were personal injury actions, not statutory actions for wrongful death.
My vote is cast to reverse and remand for entry of order denying the aforesaid motion. Plaintiff should have costs of both appellate courts.
Brennan, J., did not participate in the decision of this case.