Heider v. Michigan Sugar Co.

375 Mich. 490 (1965) 134 N.W.2d 637

HEIDER
v.
MICHIGAN SUGAR COMPANY.

Calendar Nos. 6, 7, Docket Nos. 49,890, 49,891.

Supreme Court of Michigan.

Decided May 10, 1965. Rehearing denied October 4, 1965. Certiorari granted February 21, 1966.

Gregory M. Pillon, for plaintiff.

Smith, Brooker & Harvey (Carl H. Smith, Sr., of counsel), for defendant.

Amicus Curiae: Cicinelli, Mossner, Majoros & Harrigan (Peter F. Cicinelli and Eugene D. Mossner, of counsel), as to allowance of prejudgment interest in death cases.

Certiorari granted by Supreme Court of the United States February 21, 1966.

KELLY, J.

Plaintiff brings these companion cases under the death by wrongful act statute (CL 1948, § 691.581 [Stat Ann 1959 Cum Supp § 27.711]), claiming that his sons James (12-1/2 years of age) and David (8 years of age) were drowned in a pond on defendant's premises and that their deaths were caused by defendant's negligence.

Plaintiff demanded a jury only in the David Heider case, and defendant's request for jury trial in the James Heider case was denied. The cases were consolidated for trial, one a jury case and the other a nonjury case.

At the conclusion of plaintiff's proofs, defendant moved for a directed verdict "for the reason that the plaintiffs have failed to produce evidence * * * that would tend to establish any responsibility on the defendant for the death of the children." The court took the motion under advisement and reserved decision in accordance with the terms of the Empson act.^[1]

February 15, 1961, the jury returned a verdict in favor of the plaintiff-administrator of the David Heider estate in the sum of $125,000.

February 28, 1961, defendant filed its motions for new trial and for judgment notwithstanding verdict, on the grounds that the verdict was against the clear preponderance of the evidence, contrary to the great weight of the evidence, and clearly excessive.

May 17, 1962, the trial court directed the entry of a judgment in the nonjury case of James Heider in the amount of $40,989.65, and on the same date denied defendant's February 28, 1961, motions for new trial and judgment notwithstanding verdict in the David Heider case, said motions having been under consideration by the court during the time he was deliberating on the James Heider nonjury case. Defendant then moved for new trial in the nonjury case and this also was denied, the court relying on its opinion denying the motions in the David Heider case.

Question No. 1: Was the verdict and judgment in each case against the clear preponderance of the evidence and contrary to the great weight of the evidence?

James and David Heider were half-brothers and did not live together. James was raised by and lived with his grandparents since he was 8 days old. His mother and father (plaintiff Donald Heider) were divorced and the father contributed nothing to James' support.

David, the younger, lived with his mother and younger brother and sister 3 blocks from the grandparents' home, in Sebewaing, Michigan.

The father, plaintiff Donald Heider, was in Jackson prison serving a sentence of from 10 to 20 years on an armed robbery conviction at the time of the accident.

Defendant's 200-acre tract of land is located north of the village limits of Sebewaing. In order to conduct its sugar beet processing operation, it was necessary to prevent beet particles and waste containing limestone, calcium carbonate, et cetera, from running into the Saginaw bay. To meet this problem and the requirements of the water resources commission, defendant, in 1944, commenced building a series of auxiliary ponds which finally culminated in 8 ponds, varying in size from 5.9 acres to 27.1 acres. The ponds are separated by dikes 12 feet high and wide enough to accommodate a motor vehicle for travel. There are no public roads on defendant's premises.

The pond in which the boys drowned was known as pond No 3, 27.1 acres in size and, at the time of the accident, was around 7 feet deep. Said pond was located approximately in the center of defendant's tract of land.

A pipe approximately 4 feet from the top of the embankment of pond No 3 emptied water and waste products into the pond. This chemical waste prevented freezing at the outlet and covered the surface of the water with a foamy substance for an area of 10 feet by 8 feet.

Sunday afternoon (December 21, 1958) the 2 boys left the home of their grandparents about 3:30 p.m., in subzero weather, informing the grandparents they were going to trap muskrats. When they failed to return, the grandmother conducted a search, to no avail. The marshal of Sebewaing was notified and the marshal, firemen, and citizens of Sebewaing conducted a search for well over an hour before any one thought of the possibility of the boys going onto defendant's property.

A bicycle was found on the C. & O. railroad right-of-way 300 feet north of the public roadway and footprints led from this point along the tracks for about half a mile, then across a ditch to an island in the center of pond No 3 and, after circling about, the steps led to the point where the pipe was emptying into the pond. There was a bunch of frozen foam about 3 feet from where the footprints ended.

The court in a written opinion held that the cause of death was the negligence of defendants in the maintenance of its premises contrary to legal principles, stating:

"Although none of defendant's employees was shown to have specific knowledge that children trespassed upon defendant's premises to trap, they knew that trespassers came upon defendant's land during the hunting and trapping seasons and that traps were set at the ponds to catch muskrats which frequented them and actually did considerable damage to company property by digging holes in defendant's dikes. Defendant company put up `no trespassing' signs at least twice a year but knew they did not remain in place and often were ignored. * * *

"On the basis of a careful consideration of all the evidence and the now well established law of this State, this court concludes that neither the 2 boys nor their guardians were guilty of contributory negligence in this case and that the sole, proximate cause of their deaths in this tragic accident was the negligence of the defendant company in the maintenance of its premises contrary to the following legal principle:

"`A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.' (Lyshak v. City of Detroit, 351 Mich 230; Nielsen v. Henry H. Stevens, Inc., 359 Mich 130; 2 Restatement of Torts, §§ 334, 339.)"

The trial court's misinterpretation of our Lyshak and Nielsen decisions, supra, requires emphasis that the legal principle enunciated in these opinions was that defendant in each instance was aware of the fact that infant trespassers were subjecting themselves to danger upon defendant's property. To establish this important point beyond question, not only in regard to this opinion but for future reference, the following excerpts from Justice TALBOT SMITH'S opinion in Lyshak are set forth (pp 232, 238-241, 244, 249, 251):

"The main thrust of plaintiff's argument on appeal is devoted to the proposition that defendant city knew that children `were constantly coming onto the golf course during the summer months, just as they had been doing for over a long period of time.' From this knowledge, says plaintiff, there arose `a duty on the part of defendant city of Detroit to keep a lookout for such children who might be on the golf course and, in the exercise of ordinary care, to discover their presence and the presence of infant plaintiff in a dangerous situation as presented itself on the day infant plaintiff was injured and exposed to the danger and peril of being struck by a flying golf ball.' (p 232) * * *

"It is clear that the plaintiff himself was not on the golf course as a matter of right. * * * A powerfully-driven golf ball in flight is a projectile of lethal qualities, as this record amply demonstrates. * * * The difference between a golf course and a rifle range, then, as a playground for children, is a difference of degree only.

"If duty is born of danger, the duty of the city of Detroit, knowing that children frequent a certain area, is clear. * * *

"To what degree does the landowner still wear the feudal mantle of special privilege, exempting him from the ordinary rules of negligence when children (yes, trespassing children) are known to frequent land upon which he is carrying on an enterprise hazardous to them? Can he simply say, `They are trespassers' and continue as if they were not there? Can a landowner blindly throw the firing lever and explode blasting charges in a vacant lot that, to his knowledge, is used daily as a playground by (trespassing) neighborhood children? (pp 238-241) * * *

"A distinction has been drawn between the mere condition of the premises (a child falls into a natural pond) and a dangerous situation on the premises caused by the active intervention, the affirmative acts, of the owner (the child is carelessly run down by the owner's horse and buggy). (p 244) * * *

"We have mentioned, but we have not emphasized, the distinction between an injury arising from a condition of the premises and one arising from affirmative dangerous conduct by the owner. * * * In the interests of accuracy, it should be pointed out that the case before us does not involve injury from the mere physical condition of the premises, whether natural or artificial, and hence many of the cases cited by the city against recovery (e.g., Hargreaves v. Deacon, 25 Mich 1; Graves v. Dachille, 328 Mich 69) are not precedent for the situation before us. Here we have injury from dangerous activities conducted in a limited area which trespassers in general are known to frequent. * * * Upon these facts, infant plaintiff, even if a trespasser, was a known trespasser (pp 249, 251)."

Justices DETHMERS and EDWARDS wrote concurring opinions in the Lyshak Case. Justice DETHMERS emphasized the fact that the defendant's awareness of the infant trespasser was a controlling feature, stating (p 253):

"Here defendants knew of the presence of small children within the range of a flying golf ball before the foursome. Whether, under such circumstances, it was negligence to drive or permit the driving of a ball in the direction of such small children presented, as I think, a question of fact for the jury."

Justice EDWARDS, while stating that Lyshak overruled cases "where Michigan has barred recovery for injuries involving infant trespass — holding the effect of child trespass to be identical with that of adult trespass," also said (p 253): "This case concerns a child of tender years — obviously too young to look out for himself. His presence in a place of potential danger, beside a golf course fairway, was known to agents of defendant who were on the tee at the time the golf ball was driven, which caused the loss of the boy's eye."

In Nielsen v. Henry H. Stevens, Inc., 359 Mich 130 (relied upon by the trial court), a 7-year-old boy was injured when defendant's truck collided with the boy's bicycle while he was riding it in a concreted area owned by defendant. This case had been tried and determined in the lower court prior to the Lyshak Case. It was sent back for a new trial, but the fact that defendant knew of the child's presence on its property was made clear by Justice EDWARDS when he stated (p 132):

"In Lyshak, as in the instant case, the Court was dealing with a fact situation where plaintiff alleged active negligence on the part of the defendant toward a minor child whose presence on defendant's property in a place of danger was known to defendant."

Lyshak referred to, but did not repudiate, our early 1872 decision in Hargreaves v. Deacon, 25 Mich 1, where we held:

"Owners of private property are not responsible for injuries caused by leaving a dangerous place thereon — but not immediately adjoining a highway — unguarded, where the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there."^[2]

Likewise, Lyshak referred to our 1950 Graves decision^[3] but, again, did not overrule or repudiate this decision, but merely stated that the facts in Graves (p 249) "are not precedent for the situation before us." In the Graves Case we considered the question of whether damages should be awarded in an action for the death of a 6-1/2-year-old boy by drowning in stagnant water which had accumulated in a sump on defendants' property incident to an excavation operation. After stating (p 74), "We do not find in the record that to defendants' knowledge any boy had previously gone swimming in this sump, or that anyone had ever called to defendants' attention that such might happen with fatal results," we held that the trial judge had erroneously denied defendants' motion for a directed verdict because of the absence of proof that would justify a jury finding that defendants were guilty of gross negligence.

Lyshak overruled cases referring to defendant's responsibility to trespassers only where the facts disclose that defendant owner was aware that child trespassers were entering his property and subjecting themselves to danger and possible harm.

Prior to Lyshak, decisions of this Court did not distinguish between a child and an adult trespasser. In Ryan v. Towar, 128 Mich 463 (55 LRA 310, 92 Am St Rep 481), which was referred to with approval in Petrak v. Cooke Contracting Co., 329 Mich 564, it was held: (1) An invitation or a license to cross the premises of another cannot be predicated on the mere fact that no steps have been taken to interfere with such practice; (2) There is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's premises; and (3) The owner of land is not liable to trespassers thereon for injuries sustained by them not due to his wanton or wilful acts.

The trial court in the present case erroneously concluded that while it was not shown that defendant's employees had "knowledge that children trespassed upon defendant's premises to trap," he could apply the principle of Lyshak and Nielsen, supra, because "they knew that trespassers came upon defendant's land during the hunting and trapping season."

In the recent case of Slinker v. Wallner (1960), 258 Minn 243 (103 NW2d 377), the Minnesota supreme court upheld a directed verdict for the defendant by the trial court in an action for the wrongful death of a child by drowning, stating (pp 248, 251):

"In upholding recovery in these cases we have gone a long way in placing responsibility upon the occupier of premises to safeguard trespassing children. However, there must come a point where liability does not exist as a matter of law unless occupiers of land are to be held liable merely because children might stray onto their premises. It would seem that reasonable foreseeability is and must be a necessary prerequisite to liability. * * *

"Here, the record is completely devoid of any evidence from which an inference could reasonably be drawn that the owners or occupiers of the premises involved knew or had any reason to know that children could be expected to play on these grounds any more than it is generally known that they might be found anywhere."

"Reasonable foreseeability" as a necessary prerequisite to liability is not established in this record, which is completely devoid of any evidence from which an inference could be drawn that defendant owner knew, or had any reason to know, that infant children would be trapping, playing, or trespassing upon the property.

The record sustains appellant's statement:

"The pond in question was approximately a quarter of a mile from the nearest highway. A more desolate area could not be imagined. It was midwinter and below zero weather. There was no reason to believe children would be in the vicinity. No employee of the defendant company had ever seen children trespassing on its premises or had specific knowledge that children trespassed thereon, as is conceded by the trial judge."

In the 1951 Petrak decision, supra, we considered whether defendant-owner of road-making equipment was liable for the death of an 11-year-old boy who was killed when a 1,500- to 2,000-pound beam fell on him while he and another boy were playing with a barrel of tar. In upholding a directed verdict for defendant, we, after establishing the principle that the attractive nuisance doctrine is conservatively applied in this State, said (p 568): "A reasonably prudent person would not anticipate that children in the vicinity would be likely to play with the trailer."

Applying the principles established in Petrak, we can and should conclude that "a reasonably prudent person would not anticipate" the tragic events that led up to the death of the 2 boys on defendant's premises.

We conclude that under the evidence in this record and under the decisions of this Court, including Lyshak and Nielsen, supra, the judgment in each case was against the clear preponderance and contrary to the great weight of the evidence.

Question No. 2: Should the provisions of PA 1953, No 201 (CLS 1961, § 300.201 [Stat Ann 1958 Rev § 13.1485]) be considered by this Court when said statute was not raised in the pleadings, nor at the trial, in the motion for new trial, or in reasons and grounds for appeal?

PA 1953, No 201, provides:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other a valuable consideration for the purpose of fishing, hunting or trapping, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee."

Appellant states:

"Candor compels our admission that this statute escaped the attention of this brief writer until it was noted in the December 8, 1962, publication of the negligence law section bulletin of the State Bar of Michigan. It is cited nowhere in the Michigan Reports. We think the force of the enactment is to deprive the plaintiff of any cause of action under the proofs in this case. It is not a matter of affirmative defense nor of limitation. Its language is to abolish any such cause of action. It has no limitation. The cause of action no longer exists. It applies to `any person'. The statute in question expresses the public policy of the State. It places the law with reference to trespassing hunters, fishermen and trappers, including minors, where it was prior to the more recent adjudications dealing with trespassing children and beginning with Lyshak v. City of Detroit, 351 Mich 230."

Appellee objects to consideration of the statute by this Court in this appeal because it was not raised in the pleadings, nor at trial, motion for new trial, or in the reasons and grounds for appeal; that it is an affirmative defense and cannot be raised as part of the general issues.

My answer to Question No. 1 discloses that without the application of this statute, on the record submitted, the verdict and judgment in each case should be set aside, but as this opinion is written before acceptance or rejection by my Associates, I am answering Question No. 2.

The general rule is well established that upon appellate review, parties cannot assume a position inconsistent with or different from that taken at the trial and are restricted to the theory upon which the case was defended in the court below.

This rule has its exceptions, and in Dation v. Ford Motor Co., 314 Mich 152 (19 NCCA NS 158), we held that the general rule that a question may not be raised for the first time on appeal to the Supreme Court is not inflexible and will not be applied when consideration of a claim sought to be raised is necessary to a proper determination of the case.

Especially is this true where an applicable statute has been overlooked. It has been held that the party's failure to call the trial court's attention to a relevant statute does not preclude the appellate court from considering it.^[4]

There is no claim in this case that defendant was guilty of gross negligence or wilful and wanton misconduct. There is no testimony that even infers that permission was given to the boys, or that a valuable consideration was paid by them for the privilege of going upon defendant's premises.

The statute states there must be proof of (1) payment of a valuable consideration, or (2) proof of gross negligence or wilful and wanton misconduct before a party who is on the land of another for fishing, hunting, or trapping can seek damages for injuries. In the absence of proof sustaining one of these requirements, the statute specifically states "no cause of action shall arise."

The total lack of proof to meet any of these requirements makes this statute applicable and should be considered by this Court as one more reason why the conclusion reached in answer to Question No. 1 should also be the answer to Question No. 2.

The cases are reversed and remanded to the lower court for entry of judgments of no cause of action. Defendant may recover costs.

DETHMERS, J., concurred with KELLY, J.

O'HARA, J. (concurring in reversal).

I am obligated to vote to reverse with instructions to enter an order dismissing the declarations for failure to state a cause of action of which the court had jurisdiction. This is for the reason that the legislature abolished the cause of action here sought to be asserted. Fairly read, it seems to me the whole thrust of the declarations is that the boys entered upon the property of the defendant to trap; that defendant had knowledge that many people did so and that defendant was ordinarily negligent in the maintenance of the premises.^[1] Altering the order of the paragraphs merely for clarity, the pleadings read:

"27. That David Heider is the minor son of the plaintiff, Donald Heider, and on the 21st day of December, 1958 said son with his brother, James Donald Heider and their dog set out muskrat trapping.

"28. That David Heider with his brother and dog entered the defendant's premises and walked onto one of the defendant chemical ponds.

"5. That the defendant knew persons came on their land where their artificial storage ponds are located to trap for muskrats, mink, et cetera.

"21. That the defendant failed to have any warning signs and failed to maintain the property to protect children." (Emphasis this Court's.)

The wording is identical in the companion case.

The statute^[2] involved is herewith set out in its entirety:

"An act restricting suits by persons coming upon the property of another for the purpose of hunting, fishing or trapping; and to declare the limited liability of owners of property within this State.

"The People of the State of Michigan enact:

"300.201 Prohibiting tort actions against landowners for recovery of damages, unless caused by negligence, etc., of owner, tenant or lessee. [M.S.A. 13.1485]

"Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other a valuable consideration for the purpose of fishing, hunting or trapping, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee.

"Approved June 10, 1953." (Emphasis supplied.)

At the time of these unfortunate deaths the Constitution limited the original jurisdiction of our circuit courts to "all matters civil and criminal not excepted in this constitution and not prohibited by law." (Const 1908, art 7, § 10.)^[3]

No right or rights of action as pleaded here could have accrued, to the personal representatives of either decedent, the declared acts of defendant not being "such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof" (CL 1948, § 691.581 [Stat Ann 1959 Cum Supp § 27.711]).

With or without raising of the question below, the circuit court was possessed of no jurisdiction to hear and determine the merits of plaintiffs' allegations. See the long list of authorities cited in In re Fraser's Estate, 288 Mich 392, 394, as supporting this settled principle:

"Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion, though the question is not raised by the pleadings or by counsel, recognize its lack of jurisdiction and act accordingly by staying proceedings, dismissing the action, or otherwise disposing thereof, at any stage of the proceedings."

The principle quoted was applied in Lehman v. Lehman, 312 Mich 102, 105 and Second National Bank & Trust Co. v. Wayne Circuit Judge, 321 Mich 28, 45. It is controlling here; hence my vote as indicated. The situation here is the same as if plaintiff had declared for alienation of affections.^[4] Defendant, having failed to raise the jurisdictional question in due time, should not have costs.

BLACK and SMITH, JJ., concurred with O'HARA, J.

ADAMS, J. (dissenting).

I am unable to agree with Justice KELLY that the trial court misinterpreted Lyshak v. City of Detroit, 351 Mich 230, or Nielsen v. Henry H. Stevens, Inc., 359 Mich 130. The trial judge found:

"Defendant company certainly was carrying on a legitimate business enterprise on its own premises. It was quite clear from all the evidence in the case, however, that an extremely deceptive and treacherous condition existed in the surface of the ice around the pipe discharging water into the pond. Defendant easily could have employed some sort of a warning device and sign to serve as a notice or caution to trappers and trespassers who were known to use that area frequently. That would not have limited or interfered in any way with defendant's profitable conduct of its business." (Emphasis added.)

There is ample evidence in the record to support the findings of the court and jury that defendant's property was frequented by trappers, hunters, skaters, and other trespassers. Richard Jahr, an employee of Michigan Sugar, testified:

"Q. Do you conduct any activity on these ponds?

"A. Well, I've trapped them, being within that area I would say for at least 20 years. * * *

"Q. Well, did they give you permission or didn't they?

"A. They actually did not give me permission, he says in his own words, for all of them they would like to get rid of the muskrats because they do damage on the ponds, but if I went onto them I was on my own risk.

"Q. Now, have you ever seen any evidence while you are trapping that other people trapped up there? * * *

"A. Yes, I seen others out there trap.

"Q. How many people do you know of that trap out there?

"A. Three that I know of." (Emphasis added.)

Max Meissner, also an employee of Michigan Sugar, testified that he had been aware of the fact that people were trapping in the area and that hunters often used the land in question, as many as 30 or 40 during a hunting season.

Floyd Taylor, a truck driver living in Sebewaing, testified it was common knowledge in the community that the Sugar Company premises were a good area for trapping:

"Yes, I think that just about everybody that did any trapping around town knew that that was one of the best areas around, to trap."

He testified that his own boy, when 14 and 15 years old, trapped on the ponds. There was also evidence of the presence of children, small footprints having been seen and the ponds having been used for skating.

The trial judge then went on to apply the proper legal principles. Justice KELLY would now restrict the rule "to trespassers only where the facts disclose that defendant owner was aware that child trespassers were entering his property and subjecting themselves to danger and possible harm." The requirement of reasonable care for the safety of a trespasser is subject to no such condition. Swanson v. City of Marquette, 357 Mich 424. I am unable to perceive the legal or lethal difference between a "powerfully driven golf ball in flight" (Lyshak), "a negligently driven truck" (Nielsen), "an improperly maintained electrical substation or transformer vault" (Swanson), and "an extremely deceptive and treacherous condition * * * in the surface of the ice around the pipe discharging water into the pond."

As Justice TALBOT SMITH observed in Lyshak (p 239):

"We accept as commonplace today the principle that there is a duty upon all men so to conduct their activities as to minimize the likelihood of harm to others." (Emphasis added.)

Special findings were made by the jury in answer to the following questions:

"Question No. 1 — Was the pond where the boys met their death a place where the Michigan Sugar Company knew, or should have known, that children were likely to trespass? [x] Yes [ ] No

"Question No. 2 — Was the place where the boys met their death a place where a condition existed which the Michigan Sugar Company knew, or should have known, involved an unreasonable risk of death to child trespassers? [x] Yes [ ] No

"Question No. 3 — Was the utility of maintaining the pond by the Michigan Sugar Company in the condition it was slight as compared to the risk to child trespassers as involved therein? [x] Yes [ ] No"

Likelihood and foreseeability are much the same thing. I do not disagree with Justice KELLY'S quotation of the rule in Slinker v. Wallner (1960), 258 Minn 243 (103 NW2d 377), but I do with his interpretation of the facts in these two cases where, in my opinion, likelihood of or foreseeability of possible harm existed before the tragedies occurred.

With regard to the question of damages and whether the awards were excessive or insufficient, it is necessary first of all to determine the persons who would be entitled to share in recovery. In the case of James D. Heider, the trial court equated the term "pecuniary injury" as used in the wrongful death act (CL 1948, § 691.581 et seq. [Stat Ann 1959 Cum Supp § 27.711 et seq.])^[*] with our former requirement that the beneficiary of the statutory action suffering pecuniary injury be one who was entitled to financial support from the deceased, citing MacDonald v. Quimby, 350 Mich 21. At the very latest, since our decision in Wycko v. Gnodtke, 361 Mich 331, however, we have allowed recovery of damages for pecuniary injury in such actions notwithstanding the absence of an obligation by the deceased to support the person suffering such pecuniary injury. MacDonald v. Quimby is applicable yet to the extent that it was there held, by all members of the Court, that the persons whose "pecuniary injury" is compensable under the death act are those who, in the variant circumstances of intestate succession, might be entitled to inherit the personal property of one dying intestate. In MacDonald, the deceased left surviving him a widow and children, but the Court permitted recovery of the pecuniary injury suffered by deceased's mother notwithstanding the fact that, because deceased left a widow and children surviving him, his mother would not have been entitled to inherit any of his personal estate had he died intestate.

The restriction of the class to Donald Heider, father of James D. Heider, by the trial judge was improper, since, in this case, there were other members of the class who should have been considered. The trial court said:

"This court finds from the evidence at the trial that the deceased James Heider had lived long enough to be able to demonstrate much more clearly than his younger brother David the talents, abilities, character, and accomplishments which gave such distinct and definite promise of a useful life and a good citizen. As a consequence, it would seem to follow irrefutably that his death would occasion the greater loss, not only to the community but also to his whole family, and that therefore the damages should be higher in his than in his brother's case. This court would be inclined to reach such a conclusion as a matter of simple and obvious justice."

Since the court did not make an award to cover the pecuniary injury to all of James' next-of-kin, it will be necessary to remand the case for a reconsideration of such award.

Some further comment is appropriate with regard to the assessment of damages which the trial judge did make. He awarded $10,989.65 for the cost of raising James. The sum was incorrectly allocated to Donald Heider, father of James, who did not provide such cost. It should have been allocated to James D. Heider's grandfather, who incurred the cost, and who, being within the statutory class, would be entitled to recover.

The trial judge also awarded $30,000 for loss of the society and companionship of James Heider by his father, Donald Heider, who was 33 years old at the time of the trial. James was the son of his first marriage. His wife deserted the child. Her whereabouts are unknown. Heider contributed nothing to the support of James. He was separated from his second wife. In 1953, he was arrested for nonsupport. In 1957, he pleaded guilty to robbery and was sentenced to the State prison of southern Michigan. He contracted cancer and was discharged from prison July 6, 1959, on special parole. He saw James frequently and went hunting and fishing with him. At the time of trial he had a life expectancy of 2 to 5 years. An assessment of $30,000 for the loss of society and companionship by this father upon this record cannot but raise questions. Since the assessment of damages should be redetermined, on remand for further proceedings, we need not determine whether the award made for loss of the child's society and companionship by his father was excessive. Upon retrial the court should consider carefully all elements of pecuniary injury suffered by all members of the statutory class and he should issue the certificate authorized by the wrongful death act setting forth the amount of such damages and the proportion thereof which represents the pecuniary loss suffered by each of the members of the statutory class.

In the case of 8-year-old David Heider, the jury awarded damages of $125,000. It is asserted that this sum is excessive, against the clear preponderance of the evidence and contrary to its great weight. Appellant states:

"Mrs. Heider, with the $125,000, at her present age would be able to purchase an annuity which would pay her a guaranteed monthly income of $455 for her lifetime."

The loss of companionship in David's case runs not only to the father and mother but also to a younger brother and sister. The amount of damages recoverable in actions for death by wrongful act is one peculiarly within the province of the jury. 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.

With regard to PA 1953, No 201 (CLS 1961, § 300.201 [Stat Ann 1958 Rev § 13.1485]), I am unable to agree with Justice KELLY. The declarations do not disclose the applicability of PA 1953, No 201, to bar plaintiff's asserted causes of action. Paragraphs 4, 5, and 6 of each declaration allege that the defendant knew that people went upon defendant's lands to hunt, trap, fish, and for other purposes; paragraph 27 of each declaration alleges that the two deceased boys and their dog "set out muskrat trapping"; and paragraph 28 of each declaration alleges that the boys and their dog entered the defendant's premises and walked upon one of the defendant's chemical ponds. Standing alone, such allegations are not sufficient, as it is claimed, to invoke the statutory bar of PA 1953, No 201, on the conclusionary assumption that the boys were "on the lands of another * * * for the purpose of fishing, hunting or trapping." Nor, of course, did the defendant plead any facts from which either the trial court or we properly could conclude that the boys' purpose in going upon defendant's land was one of the purposes named in the statute which would bar the causes of action sought to be asserted. Finally, the record as made below fails to disclose any direct evidence that the boys in fact went upon the defendant's lands to fish, hunt, or trap.

Dation v. Ford Motor Co., 314 Mich 152 (99 NCCA NS 158), is cited by Justice KELLY in support of the proposition that, while usually a question may not be raised for the first time on appeal to the Supreme Court, the rule is not inflexible. In Dation, this Court was dealing with an appeal from the workmen's compensation department. A question of law arose upon the appeal which admittedly the department (as a fact finding body) could not settle even if the matter had been remanded to it. The entire question being before this Court, the Court elected to pass upon it.

The problem has not received uniform treatment. Plaintiff cites Hollister v. Kinyon's Estate, 195 Mich 261; Lewis J. Selznick Enterprises v. Harry I. Garson Productions, 202 Mich 106; D. & W. Rottschafer Real Estate v. Morris, 245 Mich 192; and Shaver v. Associated Truck Lines, 322 Mich 323. Counsel for defendant stress Morris v. Radley, 306 Mich 689, in support of the exception to the rule and argue that we should apply the exception here to avoid a miscarriage of justice because of the inadvertence of counsel in overlooking and failing to raise the application of the statute before the trial court. This is not a proper case to apply the exception. Only when the matter was presented to the trial judge and he refused to rule, or, under the clearest of circumstances, where it is unquestioned that the entire matter is before this Court, should the exception prevail.

Such is not this case in which the question is first presented here as an afterthought and accorded cursory treatment and briefing. For these reasons it is not applicable at this late juncture in the case of David Heider. Litigation must come to an end. Defendant has had its day in court with ample opportunity to raise and present all defenses. It is not the function of this Court to correct, on review, the inadvertence or failure of counsel to present what might have been a defense.

In the case of James D. Heider, upon remand the trial court should determine any questions of fact which may be raised and especially the question as to whether he went on "the lands of another * * * for the purpose of fishing, hunting or trapping." The court will also consider and determine any issues with regard to the legality and construction of the act which may be raised, such as whether a minor is a "person" within the meaning of the statute, the word "person" being undefined and subject to construction in the light of a strong public policy favoring the protection of minors; whether the classification of the statute violates the due process clauses of the United States and Michigan Constitutions and the equal protection clause of the United States Constitution.

The judgment in the case of Donald Heider, administrator for the estate of James D. Heider, should be remanded for consideration of the applicability of PA 1953, No 201, supra, and for possible reassessment of the damages therein. Costs to neither party, each having prevailed in part.

The judgment in the case of Donald Heider, administrator for the estate of James D. Heider, should be affirmed. Costs to appellee.

T.M. KAVANAGH, C.J., and SOURIS, J., concurred with ADAMS, J.

NOTES

[1] CL 1948, § 691.691 et seq. (Stat Ann and Stat Ann 1959 Cum Supp § 27.1461 et seq.). — REPORTER.

[2] This wording appears in the headnote in the second, or annotated, edition. — REPORTER.

[3] Graves v. Dachille, 328 Mich 69.

[4] See 4 CJS, Appeal and Error, §§ 241, 242; Adley Express Co., Inc., v. Town of Darien, 125 Conn 501 (7 A2d 446); Bedenbaugh v. Adams (Fla, 1956), 88 So2d 765; Yannuzzi v. United States Casualty Co., 19 NJ 201 (115 A2d 557); Huntress v. Estate of Huntress (CCA 7), 235 F2d 205 (61 ALR2d 682).

[1] In view of the statute, it matters not whether the boys were licensees, invitees, or trespassers.

[2] PA 1953, No 201 (CLS 1961, § 300.201; Stat Ann 1958 Rev § 13.1485).

[3] For the corresponding present provision, see Const 1963, art 6, § 13.

[4] See CL 1948, § 551.301 et seq. (Stat Ann 1957 Rev § 25.191 et seq.) and CL 1948, § 600.2901 (Stat Ann 1962 Rev § 27A.2901). — REPORTER.

[*] See, currently, CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922).