Wood v. Detroit Edison Co.

409 Mich. 279 (1980) 294 N.W.2d 571

WOOD
v.
HE DETROIT EDISON COMPANY

Docket Nos. 61433, 61489. (Calendar No. 11).

Supreme Court of Michigan.

Argued October 2, 1979. Decided July 16, 1980.

Lopatin, Miller, Bindes, Freedman, Bluestone, Erlich & Rosen (by Michael Gagleard) for plaintiff.

Dice, Sweeney, Sullivan & Feikens, P.C., for defendants Detroit Edison Company, Parsons & Company, and Marley Corporation.

Joselyn, Rowe, Jamieson & Grinnan, P.C., for defendant Michigan Mutual Liability Company.

FITZGERALD, J.

Raymond Wood died following injuries sustained when the scaffold on which he was working collapsed. Cecelia Wood, his widow, brought an action under the wrongful death act (MCL 600.2922; MSA 27A.2922) seeking, inter alia, damages for loss of his society and companionship. Defendants were Detroit Edison, owner of the project, and Parsons & Company and Marley Corporation, the subcontractors responsible for the design and erection of the scaffolding. Michigan Mutual, the workers' compensation carrier of decedent's employer, was joined as a defendant on the theory of negligent safety inspection. Jury trial was demanded.

During the pendency of the circuit court action, plaintiff, who had remarried, filed a motion in limine seeking a protective order to prohibit at trial any mention of remarriage or prospective remarriage of Cecelia Wood and to ensure that she be referred to only by the name "Wood". The motion was denied. The court reasoned that if loss of society and companionship were claimed as damages, all facts pertaining to such loss, including remarriage, should be considered.

The Court of Appeals reversed, concluding that evidence of remarriage should not be allowed, and remanded the case for trial with instructions that the protective order be issued. This Court granted leave to appeal limited to the issue whether, in light of the amendatory language of 1971 PA 65 (MCL 600.2922[2]; MSA 27A.2922[2]), the remarriage of a plaintiff surviving spouse is admissible in a wrongful death action.

In 1971 the Legislature amended § 2 of the wrongful death act to provide:

"(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, under all of the circumstances to those persons who may be entitled to such damages when recovered including 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. 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. 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 shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence. 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 loss suffered by the surviving spouse and 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." (Amendments emphasized.)

The amendments followed closely this Court's decision in Breckon v Franklin Fuel Co, 383 Mich. 251; 174 NW2d 836 (1970), which held that loss of companionship was not a pecuniary injury for purposes of the wrongful death act. The Legislature inserted three additions into this statutory section:

(1) recovery of damages for loss of society and companionship was specifically authorized;

(2) the phrase "under all of the circumstances" was inserted; and

(3) the method of distribution was included.

Plaintiff argues that these changes were directed solely to address this Court's ruling in Breckon and did not authorize admission into evidence of either the fact or the possibility of a plaintiff's remarriage.

Defendants contend that the phrase "under all of the circumstances" is unambiguous, clearly serving to broaden the scope of damages recoverable following a wrongful death and allowing the court to consider any and all evidence affecting the amount of damages to be awarded.

The rule in Michigan, and that followed by a majority of jurisdictions, is that "evidence of plaintiff's remarriage or the probability of her remarriage is irrelevant and, therefore, was properly excluded, in determining the damages she suffered upon the death of her spouse".^[1] (Emphasis supplied.) The rationale for the rule rests predominantly on three factors:^[2]

(1) A cause of action for wrongful death arises at the time of death. Thus, the amount of damages suffered is fixed as of that time and is to be determined as of that date.

(2) To allow evidence of a subsequent marriage to influence the amount of damages awarded for the loss of society and companionship of a prior marriage is highly speculative. Comparing one relationship to another in an attempt to determine damages invites qualitative inquiry inappropriate to the probing scrutiny of the trial court.

(3) Similar to the collateral source rule, evidence of the effects of a subsequent marriage should have no bearing on the amount due a plaintiff following a wrongful death. Compensation received from another source should not affect the responsibility owed to the injured party by the tortfeasor.^[3]

Evidence of the possibility of remarriage is held not admissible for the purpose of mitigating damages for essentially the same reasons.

In accordance with such reasoning, while we continue to believe that the fact of remarriage is irrelevant to mitigate damages in a wrongful death action, we feel that a protective order which enables a plaintiff to be addressed by a name other than that which she is currently using is not proper. We agree with the following reasoning of the Supreme Court of New Jersey:

"It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury. Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it. However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury."^[4]Dubil v Labate, 52 NJ 255, 261-262; 245 A2d 177, 180 (1968).

The Illinois Supreme Court, in addressing this issue, stated, "We believe the judicial process in its search for truth need not resort to the condonation of perjury to accomplish its objective". Watson v Fischbach, 54 Ill 2d 498, 503; 301 NE2d 303, 306 (1973).

Contemporary society offers a woman various options regarding her choice of name upon marriage. She may choose to retain her birthname or she may adopt the name of her husband. Following a subsequent remarriage, for any number of reasons, she may prefer to still be known by the name she has previously used. It is incumbent upon the courts to honor her choice and address a woman by the name she has selected so as to avoid any sense of false portrayal.

We therefore hold that evidence of a plaintiff surviving spouse's remarriage may not be used to determine damages. If the plaintiff continues to regularly use the name Wood — Ms. or Mrs. Wood — after a remarriage, she is entitled to a protective order prohibiting referring to her or addressing her by the name of her present husband; the defendant's lawyer has no right to address or refer to her by a name which she does not choose regularly to use. If, however, at the time of trial she regularly uses her new husband's name she cannot properly ask the court to require the defendant's lawyer to address or refer to her by a name which she no longer regularly uses. An appropriate limiting instruction may be requested by plaintiff in this regard. We remand this case to the trial court for further proceedings in accordance with this opinion.

KAVANAGH, WILLIAMS, and LEVIN, JJ., concurred with FITZGERALD, J.

COLEMAN, C.J.

We concur with Justice FITZGERALD, but would not limit the truth to identity alone, if loss of consortium is one of the elements of damages. We do not adhere to the notion that juries can handle all manner of complex information and instructions but cannot weigh, after appropriate instruction, the fact of remarriage after the death of a spouse when determining damages for loss of consortium. Bunda v Hardwick, 376 Mich. 640; 138 NW2d 305 (1965), should be overruled.

RYAN, J., concurred with COLEMAN, C.J.

BLAIR MOODY, JR., J. (for affirmance).

We granted leave to appeal to consider whether in light of the amendatory language of 1971 PA 65 (MCL 600.2922[2]; MSA 27A.2922[2]), the remarriage of a plaintiff surviving spouse is admissible in a wrongful death action. In the process, we are asked to reconsider this Court's decision in Bunda v Hardwick, 376 Mich. 640; 138 NW2d 305 (1965), which held that the remarriage of a surviving spouse was inadmissible in a wrongful death action. Because we see no suggestion in the legislative amendment that the Legislature intended to change the rule announced by a unanimous Court in Bunda and because no persuasive reason has been proffered to justify overruling our decision in Bunda, we again hold that evidence of the remarriage of a surviving spouse is inadmissible in a wrongful death action. We, therefore, affirm the Court of Appeals.

I

In order to fully understand the present controversy, it is necessary to outline in chronological order certain decisions of this Court and certain legislative enactments involving the wrongful death statute.

Prior to 1960, the only recoverable loss in a wrongful death action was the monetary loss sustained by the heirs at law. This was the result of judicial interpretations of the wrongful death act, which, at the time, read in pertinent part as follows:

"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: Provided, however, That 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. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence introduced upon the trial of such case. 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 next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws." 1948 CL 691.582.

This Court, in Wycko v Gnodtke, 361 Mich. 331; 105 NW2d 118 (1960), expanded the narrow interpretation of the term "pecuniary loss" as it was found in the wrongful death act. The Court held:

"The pecuniary value of a human life is a compound of many elements. * * * [A]n individual member of a family has a value to others as part of a functioning social and economic unit. 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." (Footnote omitted.) Wycko, supra, 339-340.

Thus, loss of society and companionship was a pecuniary loss, recoverable under the wrongful death act.

In 1965, the Legislature amended the wrongful death act. Only the last line of the act was changed. That line was rewritten to read as follows:

"The remainder of the proceeds of such judgment shall be assets of the estate of the deceased." 1965 PA 146.

No attempt was made to alter this Court's Wycko interpretation.

Also in 1965, this Court announced its Bunda decision. Justice SOURIS, writing for a unanimous Court, stated:

"I would hold that evidence of plaintiff's remarriage or the probability of her remarriage is irrelevant and, therefore, was properly excluded, in determining the damages she suffered upon the death of her spouse." Bunda, supra, 656.

The next major event in the series was the Court's decision in Breckon v Franklin Fuel Co, 383 Mich. 251; 174 NW2d 836 (1970). Breckon was a complete retreat from the Wycko holding. The Court determined that discussion of loss of companionship in Wycko was merely dictum. The Court held that the terms "pecuniary injury" and "pecuniary loss" as found in the wrongful death act never included those losses resulting from deprivation of society and companionship.

Following the Breckon decision, the Legislature enacted 1971 PA 65, which expressly permitted recovery for loss of society and companionship. The wrongful death act was amended to read in pertinent part as follows:

"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, under all of the circumstances to those persons who may be entitled to such damages when recovered including 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. 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. 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." (Emphasis added.) MCL 600.2922(2); MSA 27A.2922(2).

II

Even a cursory examination of this chronological sequence makes certain things clear. It can be assumed that when the Legislature amended the wrongful death act in 1965, it was aware of the Wycko decision and it approved of that decision. In this context, it has been said:

"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 re-enacted by the legislature, it may be assumed that the legislature acted with knowledge of the Court's decisions and that the legislature intended the re-enacted statute to carry the Court's interpretation with it." Breckon, supra, 295 (ADAMS, J., dissenting).

See also Jeruzal v Wayne County Drain Comm'r, 350 Mich. 527, 534; 87 NW2d 122 (1957).

Further, in this same vein, after this Court's Bunda decision, the Legislature took no action whatsoever. Approval may be assumed from this legislative acquiescence. However, the same cannot be said of this Court's Breckon decision.

After Breckon was decided, the Legislature enacted 1971 PA 65. There can be no question as to the reason for the enactment. The Legislature specifically provided for what this Court had denied in Breckon:

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

The defendant would have us read certain other amendatory language in 1971 PA 65 as a repudiation of this Court's Bunda decision. Defendant focuses on the following language, "under all of the circumstances", and contends that this language should be interpreted to permit evidence of remarriage in wrongful death actions. The contention is totally without merit.

The complete focus of 1971 PA 65 was this Court's Breckon decision. The legislation clearly and unambiguously provided a remedy that this Court refused to provide. When the Legislature acts with such specificity to alter one decision of this Court, it would be highly unlikely that the Legislature would intend to alter another decision of this Court without the same specificity.

The language "under all of the circumstances" is ambiguous. The most logical reading of the language is that the Legislature intended that evidence of the "quality" of the marriage between the surviving spouse and deceased should be admissible. For example, if the surviving spouse and the deceased were separated at the time of death, such information would be relevant in assessing damages for loss of society and companionship. It would be implausible to conclude that the Legislature intended, by use of this same ambiguous language, to allow evidence of remarriage and at the same time overturn precedent of this Court.

Finally, the wrongful death act is part of the Revised Judicature Act. The Legislature has provided that the RJA is remedial in character and should be liberally construed. MCL 600.102; MSA 27A.102. A construction of the language "under all of the circumstances" as permitting evidence of remarriage would be totally inconsistent with the liberal construction that must be given to the RJA.

III

Having failed in its legislative argument, defendant further contends that this Court should reconsider its Bunda decision. There seems little reason for this Court to do so.

At the time of the Bunda decision, Michigan, according to some authority, was the only state that adhered to the rule that remarriage was admissible. Anno: Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 ALR3d 926. This Court in a unanimous opinion in Bunda analyzed all the Michigan authority and concluded that there was no logical reason nor reason based on policy for this Court to continue to adhere to its antiquated rule. Justice SOURIS wrote:

"Thus it is seen that the rule we are asked to apply has its origin in a shorthand expression casually delivered by the Court in [Jones v McMillan, 129 Mich. 86; 88 N.W. 206 (1901)] in 1901 and mistakenly adopted as a rule of law by this Court in [Sipes v Michigan Central R Co, 231 Mich. 404; 204 N.W. 84 (1925)] in 1925, and only twice thereafter, in [Stuive v Pere Marquette R Co, 311 Mich. 143; 18 NW2d 404 (1945)] in 1945 and in [Wechsler v Mroczkowski, 351 Mich. 483; 88 NW2d 394 (1958)] in 1958, even having been mentioned by this Court. Furthermore, in none of the cases cited was any reasoned thought given by this Court to the question of relevance of evidence of remarriage, or of evidence of the probability thereof, to the damages sustained as the result of the death of a spouse. Had such thought been given to the question of relevance, I am convinced that the `rule' never would have been adopted, not alone because no rational argument can be made that such evidence is relevant, but also because such `rule' would be at war with established principles of Michigan law regarding the admissibility of evidence in mitigation of damages, and, as well, with evidentiary principles adopted by other jurisdictions which have considered the question." Bunda, supra, 652.

The policy reasons supporting the Bunda decision seem equally as valid today as they did 15 years ago when that decision was announced. While it is important that a court not slavishly rely on precedent, it is also important to give respect to precedent and not overrule or modify it unless some substantial reason is given for doing so.

Defendant suggests that the reason for modifying the Bunda rule is that the integrity of the court is undermined by permitting a remarried woman, as in this case, to take the stand and take the oath using a name that is no longer hers. See Dubil v Labate, 52 NJ 255; 245 A2d 177 (1968). This argument is specious.

The integrity of the judicial system is not compromised by allowing this remarried plaintiff to take the oath under her previous name. The integrity of the system would be undermined, however, if mention were allowed of an irrelevant item, such as the remarriage, and this irrelevant item were to cause a party to lose or to receive a diminished award to which the party was entitled. The Rhode Island Supreme Court, among others, considered this very issue we are facing today. In rejecting any mention of the remarriage of plaintiff, the Court reasoned:

"We agree with the concern of the New Jersey court, as expressed in Dubil, for the maintenance of the integrity of the judicial process at all times. But we must bear in mind, and never lose sight of the fact, that the primary purpose of a judicial hearing is to decide cases on the basis of relevant evidence by ascertaining the truth, unfettered by irrelevant and extraneous evidence which might confuse or unduly prejudice the triers of fact against either of the parties. It is undisputed that the remarriage of a widow in this type of a case has no bearing on the measure of damages and is, therefore, absolutely irrelevant on that issue. Her new name, or her remarriage, is of no concern to the jury in determining the amount of damages, if any, due as a result of her husband's death. Since the measure of damages is fixed as of the time of decedent's death, and inasmuch as conditions happening thereafter have nothing at all to do with the question of damages, we fail to see how the integrity of the judicial process is endangered by a hearing based only on relevant evidence.

"To inject information concerning a widow's remarriage would, in our judgment, not only introduce irrelevant matter, but what is more important, it would be admitting evidence which could very well have a tendency to confuse the jury and adversely prejudice the plaintiff. This would in our opinion be putting a premium on form and overlooking substance. Nor do we believe that an instruction to the jury at the inception of the trial, or during the trial, saying that evidence of remarriage is not to be considered by them, will outweigh the likelihood of misuse of such evidence by the jury. For the same reason, neither do we believe that the presumption that the jury will follow the trial judge's instructions will outweigh the likelihood of misuse of such evidence." (Emphasis added.) (Citations omitted.) Wiesel v Cicerone, 106 RI 595, 606-607; 261 A2d 889 (1970).

This strong and reasonable statement is equally applicable to our situation today.

IV

In conclusion, we hold that evidence of the remarriage of a surviving spouse is inadmissible in a wrongful death action.

Affirmed. Costs to plaintiff.

NOTES

[1] Bunda v Hardwick, 376 Mich. 640, 656; 138 NW2d 305 (1965).

[2] See Anno: Admissibility of evidence of, or propriety of comment as to, plaintiff spouse's remarriage, or possibility thereof, in action for damages for death of other spouse, 88 ALR3d 926.

[3] Bunda, supra, 652-653.

[4] We differ from the view taken in the New Jersey case that the trial judge is required to instruct the jury, at the beginning of the case, that the plaintiff has remarried.