Westfall v. Venton , 1 Mich. App. 612 ( 1965 )

1 Mich. App. 612 (1965) 137 N.W.2d 757

WESTFALL
v.
VENTON.

Docket Nos. 313, 314.

Michigan Court of Appeals.

Decided November 15, 1965. Leave to appeal denied February 11, 1966.

MacLean, Seaman & Laing (Charles R. MacLean, of counsel), for plaintiff.

Smith & Haughey (Sherman H. Cone, of counsel), for defendant.

Leave to appeal denied by Supreme Court February 11, 1966. See 377 Mich. 700.

HOLBROOK, J.

On November 22, 1963, plaintiff filed separate suits against defendant in the circuit court for the county of Eaton, under the provisions of the wrongful death act, CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922), one action seeking recovery on behalf of the estate of Hazel Westfall, deceased, and the other action on behalf of the estate of Harper Westfall, deceased. Both actions sought damages as a result of a motor vehicle accident. Mrs. Westfall died as a result of injuries without regaining consciousness. Mr. Westfall also died, but survived for 7-1/2 days, part of the time suffering severe conscious pain. Plaintiff's claims on behalf of the estate of Hazel Westfall, limited the damages to loss of love, affection, and companionship on behalf of the decedent's six children during the remainder of Mrs. Westfall's life expectancy.

Plaintiff's claims on behalf of the estate of Harper Westfall, deceased, were for damages for funeral and burial expenses for Harper and Hazel Westfall, property damage to the automobile, medical and hospital expenses incurred by Harper Westfall and loss by Harper Westfall of his wife's services, affection and companionship during the 7-1/2 days which he survived her, and the loss of the love, affection, and companionship of Harper Westfall on behalf of the decedent's six children during the remainder of the life expectancy of said Harper Westfall.

The two cases were joined for trial by consent of all parties, and trial was had resulting in jury verdicts for the plaintiff in each case; $13,000 for the estate of Harper Westfall, including $3,462.70 for property loss, medical and hospital expense, and funeral and burial expenses; $5,000 for the estate of Hazel Westfall, deceased. Judgments were entered in accordance with the jury verdicts October 26, 1964. Defendant appeals.

The six children of Harper Westfall and Hazel Westfall were adults with established homes of their own and the evidence was to the effect that none of the children had received any support from either parent since the date of their respective marriages, and none of them had contributed to the support of their parents from said dates. This with the possible exception of one daughter who lived with her parents from January through May of 1959 during a nervous breakdown and divorce proceedings brought by her first husband.

The evidence shows that the adult children of the deceased had maintained a close relationship with their parents. They regularly visited them and were visited by them, and they received considerable spiritual advice and moral support from their parents. The family as a unit was usually together on holidays and the deceased parents took particular interest in the well-being of their children and grandchildren making gifts to them out of their limited resources and assisting with their religious education. A daughter testified that the loss of her parents left her with a feeling of loss of security and moral support. One son testified that he had gone on frequent hunting and fishing trips with his father and that they had started to construct a cabin together in northern Michigan. Prior to the death of Mr. and Mrs. Harper Westfall, the family was a well-knit, close unit.

Appellant raises two questions. (1) In an action for wrongful death, may the administrator recover damages for loss of love, affection, and companionship of the deceased on behalf of adult children of the deceased where all are married, maintaining their own separate households, and receiving no support from the deceased? (2) Does instantaneous death give rise to an action for loss of consortium to a surviving spouse?

These actions may be brought, if at all, under CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922), which states in part as follows:

"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation 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 his death. Such person or persons entitled to such damages shall be of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate. The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto. * * * After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and the next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws." (Emphasis supplied.)

Until recently, the basis for recovery of damages for the death of a person over 21 years of age was either financial dependency, MacDonald v. Quimby (1957), 350 Mich. 21, or assumption by deceased of an obligation to support a surviving next-of-kin, Judis v. Borg-Warner Corporation (1954), 339 Mich. 313; Rytkonen v. City of Wakefield (1961), 364 Mich. 86; Mooney v. Hill (1962), 367 Mich. 138.

The dissenting opinion of Mr. Justice TALBOT SMITH in the case of Courtney v. Apple (1956), 345 Mich. 223, appears to be a harbinger of a new rule concerning what is included in "pecuniary injury" under the death act.

The case of Wycko v. Gnodtke (1960), 361 Mich. 331, is a landmark case changing the rule concerning pecuniary injury or damage, wherein Mr. Justice TALBOT SMITH stated in part on pp 338-340 as follows:

"What, then, is the pecuniary loss suffered because of the taking of the child's life? It is the pecuniary value of the life. * * * This value is the value of mutual society and protection, in a word, companionship. The human companionship thus afforded has a definite, substantial, and ascertainable pecuniary value and its loss forms a part of the ``value' of the life we seek to ascertain. * * * It is true, of course, that there will be uncertainties in all of these proofs, due to the nature of the case, but we are constrained to observe that it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created."

Wycko v. Gnodtke, supra, involved the death of a minor child; however, the pertinent interpretation of the meaning of "pecuniary injury" to include the value of a life is not specifically limited to a minor child.

Now, five years later, three cases, Currie v. Fiting (1965), 375 Mich. 440, Heider v. Michigan Sugar Company (1965), 375 Mich. 490, and Reisig v. Klusendorf (1965), 375 Mich. 519, shed further light on the meaning of "pecuniary injury."

The Currie Case, allowed recovery for the wrongful death of an emancipated daughter living at home when not at school. The parents were not dependent upon the daughter, but suffered injuries attendant her unlawful death, including loss of companionship. Mr. Justice O'HARA in a concurring opinion stated on p 456 as follows:

"``That the Wycko Case overruled all of the prior cases and set up an entirely new standard for the determination of pecuniary loss in death cases' in order to include therein an element of recovery which had not previously been recognized in this State. The decision in that case, now part of our jurisprudence, has been presumptively known to the legislature at the very least since 1960.

"The sword of presumptive legislative notice of judicial decisions cuts both ways. If it is a valid concept in the maintenance of the status quo, as this Court held for many years when change was advocated, it must be equally valid when change becomes a judicial fait accompli. See, generally, 50 Am Jur, Statutes, § 326, p 318; 21 CJS, Courts, § 214, pp 388-390 and Twork v. Munising Paper Co., 275 Mich. 174; In re Clayton Estate, 343 Mich. 101; Consumers Power Co., v. County of Muskegon, 346 Mich. 243; Sheppard v. Michigan National Bank, 348 Mich. 577.

"If the legislature had found Wycko inconsonant with legislative intent, it has had ample opportunity to amend the act to declare explicitly and precisely what elements of damage are included or excluded from ``pecuniary loss.'"

In Reisig, the Supreme Court ruled that damages for the loss of an adult son were properly awarded in an action under the death act. Proof of support or reasonable expectation of continued support being permissible but not essential to recovery of damages for loss of companionship, life itself having value. Mr. Justice O'HARA reiterated in this case, his concurrence as expressed in the Currie Case.

The Heider Case is important to this Court by reason of the dissenting opinion of Mr. Justice ADAMS. The majority of the Court reversed the judgment for plaintiff for the reason that a recent statute outlawed the action. The minority opinion written by Mr. Justice ADAMS stated on p 516, in part as follows:

"Taking into account the total family relationship, the probable dependency of the mother upon David, and the loss to the family group of the life of David over a useful lifetime, we do not find the verdict excessive." (Emphasis supplied.)

The award of damages for loss of companionship caused by the unlawful death of an adult daughter and an adult son, ruled as proper in the Currie and Reisig Cases, together with the quote from the Heider Case indicates to this Court, that the unlawful death of any member of a family unit with provable loss of companionship present, is actionable and included in the term "pecuniary injury" contained in the death act as construed in the Wycko, Currie, Heider and Reisig Cases.

A family unit, including all of its members, whether living under the same roof or not, is still a family unit. As a rule, parents as they grow older acquire more wisdom and appreciation for their children, grandchildren, and the family unit. This enables them to exert through their concern, love, and companionship valuable guidance to the other members of the family, and strengthen the effective service of the family as a unit. The unlawful taking of the life of one of the members of a well-knit and close family unit, where love, and concern, abounds, severs this unit, with resulting pecuniary injury to the survivors. For such loss the survivors have an action under the death act.

In 74 A.L.R. 11, 72, there appears under the title of "Sentimental" losses, including mental anguish, loss of society, and loss of marital, filial, or parental care and guidance, as elements of damages in action for wrongful death, the following:

"Sometimes the pecuniary value of the lost comfort, society, protection, and companionship of the deceased is held a proper element of damage, at least where the particular statute allows such damages as, under all the circumstances, may be fair and just." (Emphasis supplied.)

Cited thereunder are cases from the Federal courts and 17 States: California, Florida, Georgia, Idaho, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Oklahoma, Pennsylvania, South Carolina, Utah, Virginia, Washington, and Wisconsin.

We find no error in the trial judge's submitting to the jury in each case for assessment of damages "loss of love, affection, and companionship on behalf of decedents' six children during the remainder of both Mr. and Mrs. Westfall's life expectancy."

In considering the appellant's second claimed error, that of submitting the question of the loss of "consortium," we turn to the jury instructions of the learned trial judge, viz:

"Now, we get into this other area, the loss of companionship and services of the wife, which is a compensable item.

"If you find for the plaintiff, because Mrs. Westfall dies shortly after the accident, Mr. Westfall was deprived of such companionship, services and love and affection, —

"If you so find, you are entitled to bring in such a figure as you claim that — which he is entitled, to the estate. * * *

"The estate is entitled to recover the pecuniary value of such companionship in the same amount as you would award to Mr. Westfall, if he had survived. Consequently, you should include in any judgment for the plaintiff, as administrator of Mr. Westfall's estate, such sum as is reasonable or compensable for Mr. Westfall's loss of companionship of his wife, the love and affection, during such 7-1/2 day period."

It has been the law in Michigan for a number of years that in an action under the death act, as amended, for damages arising because of the death of the wife, the husband is entitled to recover for the loss of her services. Gorton v. Harmon (1908), 152 Mich. 473 (15 Ann Cas 461); Crook v. Eckhardt (1937), 281 Mich. 703; Stuive v. Pere Marquette R. Co. (1945), 311 Mich. 143; Grimes v. King (1945), 311 Mich. 399; Zolton v. Rotter (1948), 321 Mich. 1; and In re Olney's Estate (1944), 309 Mich. 65.

We have just ruled that adult children may recover from the tort-feasor for the unlawful death of a parent where loss of love, companionship, and guidance have been proven. This, upon the premise and with the spirit, expressed in the opinion of Wycko v. Gnodtke, supra. The same elements of pecuniary injury plus loss of services of the wife during the 7-1/2 days that the husband survived her were also submitted as proper to be considered by the jury as a loss to the husband in assessing damages.

In Burns v. Van Laan (1962), 367 Mich. 485, Mr. Justice SOURIS in a concurring opinion stated on pp 501, 502, in part:

"The question now is, should we acknowledge that the same loss of consortium, differing only in degree because death has made it permanent, can be recompensed likewise where damages are sought under the statute for wrongful death? That question is ours to answer as well as the legislature's, for nothing yet in the wrongful death act, except as we construe it, bars recovery for such losses. * * *

"There is precedent from other jurisdictions, as well as the logic of consistency, to support the conclusion that damages may be recovered in behalf of a surviving spouse in a death action for the pecuniary value of the loss of such noneconomic interests of a marriage as are known within the concept of consortium. See Beeson v. Green Mountain Gold Mining Co. (1880), 57 Cal 20; Newton v. Thomas (1955, 1956), 137 Cal App 2d 748, 769 (291 P2d 503, 516); Spangler v. Helm's New York-Pittsburgh Motor Express (1959), 396 Pa 482 (153 A2d 490); Vines v. Arkansas Power & Light Co. (1960), 232 Ark 173 (337 S.W.2d 722); Continental Bus System, Inc., v. Toombs (Tex Civ App 1959), 325 S.W.2d 153, 167; Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis 2d 491 (109 NW2d 131); Johnson v. Charleston & Western Carolina R. Co. (1959), 234 SC 448 (108 SE2d 777); Complete Auto Transit, Inc., v. Floyd (CCA 5, 1958), 249 F2d 396, relying upon Blue's Truck Line, Inc., v. Harwell (1938), 59 Ga App 305, 310 (200 S.E. 500, 502); Hall v. Gillins (1958), 13 Ill 2d 26 (147 NE2d 352); and Moss v. Hirzel Canning Co. (1955), 100 Ohio App 509 (137 NE2d 440). There are other cases, many others. See West's General Digest (3d ser) and its 6 decennial digests under the heading Death, § 88. See, also, 74 A.L.R. 11, particularly section VI b, at p 72 et seq., and supplements."

To give full meaning to the term "pecuniary injury" as contained in the death act as we interpret the spirit of the decisions of our Supreme Court in the Wycko, Currie, and Heider Cases, and consonant with the intent of Reisig v. Klusendorf, supra, we conclude that recovery of damages for loss of society and companionship of a husband or wife under the death act is includable and proper.

Burns v. Van Laan, supra, is authority also, for the rule of law that a decedent's personal representative is exclusively entitled to recover all damages, and a widow is not entitled to a separate action for "consortium," but it must be recovered if at all, in the personal representative's suit brought on behalf of the deceased husband for the unlawful death.

The two cases, that of Mr. Westfall and Mrs. Westfall, by consent, were joined for trial, submitted to the same jury, and the loss to the husband for care and services, love and companionship of the wife for the 7-1/2 days that Mr. Westfall survived Mrs. Westfall, was only included once. This Court finds that, although under Burns v. Van Laan, supra, the submission of the said claimed loss should have been in Mrs. Westfall's case, no prejudicial error has resulted.

Arguendo, the same persons will share in each case, thereby precluding any harm to plaintiffs or defendant.

Error to be reversible must be prejudicial. Anthony v. Cochrane (1940), 295 Mich. 386; Murchie v. Standard Oil Company (1959), 355 Mich. 550; Britten v. Updyke (1959) 357 Mich. 466. See, also, CLS 1961, §§ 600.2301, 600.2315 (Stat Ann 1962 Rev §§ 27A.2301, 27A.2315), and GCR 1963, 529.1.

Judgments affirmed. Costs to appellees.

BURNS, P.J., and McGREGOR, J., concurred.