Smith v. City of Detroit Swarthout

388 Mich. 637 (1972) 202 N.W.2d 300

SMITH
v.
CITY OF DETROIT
SWARTHOUT
v.
BEARD

No. 7 September Term 1972, Docket No. 51,164.

Supreme Court of Michigan.

Decided November 29, 1972.

Leonard C. Jaques (Jerome G. Quinn, of counsel), for plaintiff Smith.

Michael M. Glusac, Corporation Counsel, and John F. Hathaway and Maureen P. Reilly, Assistants Corporation Counsel, for defendant City of Detroit.

van Benschoten & van Benschoten, P.C., for plaintiff Swarthout.

Early, Starbuck & Lennon (Carl H. Reynolds, of counsel), for defendant Sarvis.

SWAINSON, J.

Both of these cases involve the issue of the validity of the Breckon decision^[1] in wrongful death actions. They have been consolidated for purposes of this opinion because they involve basically the same issues.

SMITH v CITY OF DETROIT

On April 28, 1968, nine-year-old Gary Smith was killed when he fell off a playground apparatus in an upside down position, the apparatus then rolled on top of his head crushing his skull. On February 26, 1970, plaintiff commenced an action under the wrongful death act^[2] against the City of Detroit contending that the city was negligent and grossly negligent in the maintenance of the toys at the city's playground where the accident occurred and further that the toys constituted a nuisance. Plaintiff moved that the trial, which was scheduled for March, 1972, be adjourned until after April 1, 1972 so that plaintiff could prove damages under 1971 PA 65 which specifically permits the recovery of pecuniary damages for loss of society and companionship in wrongful death actions. The trial court granted this motion and trial was set for May 15, 1972. Prior to the commencement of the trial, defendant moved in limine to preclude plaintiff from proving damages provided by that amendment and sought to limit proof of damages to only items permitted under Breckon v Franklin Fuel Co, 383 Mich 251 (1970). Under Breckon, pecuniary damages for loss of society and companionship were not recognized. The trial court granted defendant's motion to limit proofs and also denied plaintiff's motion for a stay of proceedings pending appeal. Plaintiff thereupon filed an application for leave to appeal and a motion for stay of proceedings in the Court of Appeals. These motions were granted by the Court of Appeals on May 19, 1972. On June 1, 1972, plaintiff filed application for leave to appeal with our Court prior to disposition by the Court of Appeals. We granted leave to appeal. 387 Mich 791.

SWARTHOUT v BEARD

Plaintiff's decedent, Leonard Clark, was killed on July 29, 1963 when an excavation caved in on him. He was working in the excavation as an employee of Nordstrom-Myers, Inc., the general contractor putting in footings for the library building at Alma College. Plaintiff's administrator filed a complaint alleging wrongful death^[3] on November 4, 1963. An amended complaint was filed on January 28, 1966 charging negligence against Leland Beard, d/b/a/ Beard's Welding and Erection Company, the excavator, and Lewis J. Sarvis, the architect, as original defendants. Nordstrom-Myers, Inc. was subsequently impleaded as a third party defendant. The trial court dismissed the action against Nordstrom-Myers without prejudice on the theory of workmen's compensation immunity. A jury trial resulted in a verdict of no cause of action against defendant Beard. A verdict of $25,000 was returned against the architect, Lewis J. Sarvis. The Court of Appeals affirmed the trial court as to the finding of liability as against the defendant Sarvis, but remanded for a new trial to determine damages in light of Breckon. 33 Mich App 395. We granted leave to appeal. 387 Mich 770.

Several issues are raised by the parties on this appeal. Two issues are common to both cases.

I. Whether pecuniary damages for loss of companionship was a proper element of damages under the wrongful death act before the 1971 amendment?

II. Whether the 1971 amendment to the death act is retroactive?

In the Smith case the city filed a cross-appeal and raised the following issue:

III. Whether the governmental immunity statute of 1970^[4] should be applied retrospectively?

In the Swarthout case plaintiff raised the following issues on appeal:

IV. Whether the question of interest from the date of death to the date of the verdict should have been submitted to the jury?

V. Whether the question of damages for conscious pain and suffering should have been submitted to the jury?

Defendant in the Swarthout case raises the following issues on appeal:

VI. Whether the architect had the duty to supervise the manner in which the general contractor and/or the excavating subcontractor made the excavation?

VII. Whether the architect had a duty to protect the workmen of the general contractor working in the excavation and stop the work?

VIII. Whether the trial court erred in denying defendant's motion to dismiss at the close of plaintiff's proofs since no evidence of the professional standards violated was submitted by the plaintiff?

The issue of loss of companionship as an element of damages has been before this Court on numerous occasions in recent years.^[5] In Wycko v Gnodtke, 361 Mich 331 (1960), our Court upheld a jury award of $14,000 under the wrongful death act for the death of a 14-year-old boy. The Court, in the course of its opinion, overruled the measure of damages as formulated by the Court in Courtney v Apple, 345 Mich 223 (1956). The Court in Courtney had stated (p 232):

"The foregoing cases and others of like import indicate the interpretation that this Court has placed on the provisions of the death act here involved. In an action to recover damages for the negligent killing of a young child the trier of the facts is required, under the statute, to determine the difference between probably contributed earnings, during minority, to a parent, and the cost of maintaining and educating such child until majority."

The Court in Wycko traced the history of the wrongful death act in its interpretation in Courtney back to Lord Campbell's act.^[6] Justice SMITH pointed out concerning the measure of damages (p 335):

"They [the judges] were merely interpreting the statute in accordance with the social conditions of the day, which, presumably, the legislative body had in mind in the enactment of the legislation then under consideration. The rulings reflect the philosophy of the times, its ideals, and its social conditions. It was the generation of the debtor's prisons, of some 200 or more capital offenses, and of the public flogging of women. It was an era when ample work could be found for the agile bodies and nimble fingers of small children. Defoe's England was not long past. He noticed with approval that at Colchester and in the Tauton clothing region ``"there was not a child or in the villages round it of above 5 years old, but, if it was not neglected by its parents and untaught, could earn its bread."'"

Thus, it was not surprising that in that era courts required that pecuniary loss be established by a wage benefit less costs as a measure of damages. However, Justice SMITH continued (pp 337-338):

"That this barbarous concept of the pecuniary loss to a parent from the death of his child should control our decisions today is a reproach to justice. We are still turning, actually, for guidance in decision, to ``one of the darkest chapters in the history of childhood.' Yet in other areas of the law the legal and social standards of 1846 are as dead as the coachman and his postilions who guided the coaches of its society through the dark and muddy streets, past the gibbets where still hung the toll of the day's executions. In most areas the development of the law has paralleled the enlightened conscience of our people. Examples abound. We no longer tolerate the intentional infliction of mental suffering. Illness from such cause is not, we now recognize, imaginary. A right to privacy is recognized, haltingly, it is true, but a start has been made. The exploitation of children by avaricious parents and guardians is no longer permitted, much less condoned. A combination of influences, all arising from the public condemnation of child labor, has resulted in almost universal State child-labor and compulsory school attendance laws. In fact, our society, by one means or another, now attempts to keep children out of the general labor market. * * *

"It follows from the foregoing that we now reject, as prayed by appellant, the child-labor measure of the pecuniary loss suffered through the death of a minor child, namely, his probable wages less the cost of his keep, in all cases consistent therewith we now overrule."

The Court then went on to state that loss of companionship was an element of damages under the wrongful death act. 361 Mich 339-340.

In Breckon v Franklin Fuel Co, 383 Mich 251 (1970), a majority of the Court held that Wycko should be limited to its facts and that loss of companionship was not an element of damages. The Legislature by 1971 PA 65, effective March 30, 1972, amended the wrongful death act and permitted recovery for loss of society and companionship.^[7]

Thus, our decision and its application is limited to cases commenced before March 30, 1972.

We hold that the Court in Breckon was incorrect in its interpretation of Wycko in that the measure of damages in wrongful death cases does include loss of society and companionship. The arguments on both sides of this issue have been thoroughly stated in numerous opinions of this Court.^[8] We believe that the dissenting opinion of Justice ADAMS in Breckon properly states the law and we hereby adopt that opinion. 383 Mich 280-299.

In addition, there are certain issues raised by the majority in Breckon that we will deal with in greater detail. The Court in Breckon stated that Wycko only dealt with the issue of excessive damages. However, it is clear that the Court could not uphold the recovery in Wycko without setting up a new measure of damages for wrongful death cases. In Wycko, the trial judge reduced a jury verdict of $14,000 to $7,500 and stated that no child had an earning capacity of $14,000. 361 Mich 341. Our Court in Wycko did not contend that a child of 14 could earn $14,000. If it did, then the Breckon Court would be correct in its contention that Wycko never reached the issue of loss of companionship. The Wycko Court, however, did the exact opposite and recognized that under today's conditions a minor child is an expense. 361 Mich 341. Hence, the Wycko Court was forced to deal with the issue of what elements constituted damages under the wrongful death act. If the loss of companionship is not an element of damages, then any amount above medical and funeral expenses could not be recovered since the average child is not a breadwinner as he was in the nineteenth century. Thus, the Court in Wycko was not dealing with the issue of excessive damages but rather with the fundamental question of the proper elements of damages in a wrongful death case.

The second point is that the Breckon majority felt that the failure of the Legislature to act after the Wycko decision was not evidence of legislative intent that Wycko was correct. 383 Mich 276-277. We believe that the repassage by the Legislature of the wrongful death act in 1965 (after Wycko was decided) without change indicated legislative acquiescence of this Court's interpretation in Wycko. As Justice ADAMS stated in Breckon, 383 Mich (p 295):

"It has long been recognized that where this Court has given an interpretation to a statute with no reaction from the legislature in the form of statutory revision, it may be assumed there is legislative acquiescence in the statute's meaning. Even more persuasive is the rule that where the basic provisions of a statute have been construed by the courts and these provisions are subsequently reenacted by the legislature, it may be assumed that the legislature acted with knowledge of the Court's decisions and that the legislature intended the reenacted statute to carry the Court's interpretation with it. See: McEvoy v City of Sault Ste. Marie (1904), 136 Mich 172; Gwitt v Foss (1925), 230 Mich 8, 12; In re Clayton Estate (1955), 343 Mich 101, 106, 107; Jeruzal v Wayne County Drain Commissioner (1957), 350 Mich 527, 534." (Emphasis by Court.)

Moreover, when the Court in Breckon did limit Wycko, the Legislature immediately acted to change the interpretation of this Court. Thus, while this is not conclusive evidence that Wycko was correct, it is strong evidence that the Legislature was cognizant of our decision when it reenacted without change the wrongful death act in 1965 and that the above quoted rule of statutory construction is a proper one.

Thus, we hold that loss of companionship is an element of pecuniary damages under the wrongful death act and that Breckon is overruled.

In the Swarthout case, plaintiff raised two other issues on appeal and defendant raised three issues on cross-appeal. We believe that the opinion of the Court of Appeals properly disposes of these issues. 33 Mich App 395. In the Smith case, the city filed a cross-appeal contending that the governmental immunity statute^[9] should be given retrospective application. GCR 1963, 853.2(5) provides:

"Within 20 days after service upon him of notice of an order granting application for leave to appeal, whether before or after decision by the Court of Appeals, appellee who has not theretofore filed a claim of cross-appeal shall have the right to file a claim of cross-appeal in the Supreme Court in substantially like form and with like effect as under Rule 807. No filing fee shall be required for filing such claim of cross-appeal."

In this case, leave to appeal by our Court was granted on June 9, 1972 and the claim of cross-appeal was not filed until August 25, 1972. This is a clear violation of our Court Rules and no exculpatory reason has been advanced by the defendant for the delay of more than 60 days. We therefore decline to deal with this issue.

In Smith v City of Detroit, the judgment is reversed and the cause is remanded for a trial in accordance with this opinion. In Swarthout v Beard, the judgment is reversed and the cause is remanded for entry of judgment on the jury verdict. In both cases costs to plaintiff.

T.M. KAVANAGH, C.J., and ADAMS and WILLIAMS, JJ., concurred with SWAINSON, J.

T.E. BRENNAN, J. (dissenting).

The majority refer several times to "pecuniary damages". The phrase is redundant and confusing. No one has ever doubted the right of a plaintiff in a wrongful death action to recover "pecuniary damages". All damages are pecuniary damages. Damage verdicts are always expressed in dollars and cents. They result in money judgments.

The issue, so long debated here, was never whether "pecuniary damages" could be awarded for loss of society and companionship. The issue was whether or not loss of society and companionship was a "pecuniary injury" within the meaning of the former statute which permitted the recovery of "* * * damages * * * with reference to pecuniary injury * * *".

The argument that Breckon misread Wycko because Wycko overruled Courtney does not follow, unless it be presumed that there is no middle ground between loss of earnings and loss of companionship.

By the way, whatever happened to Rohm v Stroud, 386 Mich 693 (1972)?

BLACK and T.G. KAVANAGH, JJ., concurred with T.E. BRENNAN, J.

NOTES

[1] Breckon v Franklin Fuel Co, 383 Mich 251 (1970).

[2] MCLA 600.2922; MSA 27A.2922.

[3] MCLA 600.2922; MSA 27A.2922.

[4] 1970 PA 155; MCLA 691.1401 et seq.; MSA 3.996(101) et seq.

[5] Courtney v Apple, 345 Mich 223 (1956); Wycko v Gnodtke, 361 Mich 331 (1960); Burns v Van Laan, 367 Mich 485 (1962); Currie v Fiting, 375 Mich 440 (1965); Heider v Michigan Sugar Co, 375 Mich 490 (1965); Reisig v Klusendorf, 375 Mich 519 (1965); Wilson v Modern Mobile Homes Inc, 376 Mich 342 (1965); Mosier v Carney, 376 Mich 532 (1965); Breckon v Franklin Fuel Co, 383 Mich 251 (1970).

[6] Fatal accidents act, 1846, 9 & 10 Vict, c 93, § 2.

[7] MCLA 600.2922; MSA 27A.2922 provides in part:

"The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased."

[8] See footnote 5, supra.

[9] 1970 PA 155; MCLA 691.1401 et seq.; MSA 3.996(101) et seq.