*1 637 City op 1972] CITY OF DETROIT SMITH v BEARD SWARTHOUT Opinion Companion- Damages—Society Wrongful and Death — 1. Death — ship. wrongful damages cases does include death The measure of Michigan Supreme companionship; loss of (MCLA600.2922). contrary to the it held was incorrect when [1,15] ^[2] ^[4] ^[3] ^[9] [8, ^[7] [5, 22 ^[11] ^[10] ^[13] ^[12] ^[14] ^[16] ^[21] [18-20] ^[22] ^[17] ^[23] Division Measure of "Sentimental” Joinder of cause of action Survival of action 22 6] 22 Am Jur 22 Am Jur 22 Am Jur 22 Am Jur loss of of in settlement representative 22 Am Jur 50 163 ALR 253. estate, 22 Am Jur 22 22 Am Jur 22 Am Jur 4 Am Jur No references. 22 Am Jur cause of action for Am Jur 22 Am Jur 22 Am Jur Am Am Am Jur Am Am Jur among marital, filial, Jur, Jur Jur 2d, 2d, Death 1.§ 2d, 2d, 2d, 2d, 2d, 2d, References 2d, Death 29.§ 2d, 2d, 2d, 2d, in action Statutes 2d, losses, including mental 2d, 2d, Death 13.§ Death § upon Death 191. 2d, beneficiaries Death 10.§ Appeal Death 6.§ Death 121. Death § Interest and Death §§ Death §§ Death Death Architects § Death 119 et wrongdoer, or cause of action account for death § § for and Error 292§ § or 183. 223. §2 267. for Points § § 26,127. 26, 230, 246. wrongful parental 135. et of amount Usury death, seq. pain 171 25. wrongful in action for benefit seq. ALR 1392. care and death, §§ 35 in Headnotes anguish, for awarded et ALR2d 1377. suffering death, seq. 74 ALR wrongful guidance, 171 ALR by jury loss of of decedent with 11. of decedent's as elements society, or received 204. against 388 Mich Wrongful 2. Death — Death —Common Law. provided no cause of common law action death. Wrongful 3. Death — Death —Statutes—Beneficiaries—Descent *2 and Distribution. original providing statute a Before the cause of action for wrongful not treat the amount death did recovered as an asset but was recovery decedent’s amended to make estate the an among beneficiaries, asset according to be distributed the not to damage according proportion by but suffered the fixed (1848 94). 38; statute of descent and distribution PA 1873 PA 4. Death —Survival Act —Statutes—Assets of Decedent’s Estate— Representative Wrongful Personal — Death. act, gave personal representative The survival before decedent, survival, right by injuries a by of action for suffered his decedent before death and the recovered estate; became an asset of decedent’s did create a new (1846 prevented lapsing RS, cause of action but of an old one 113). chap 101, 5, by as amended 1885 PA § Wrongful 5. Death — Death —Survival Act —Remedies—Joinder. estate, 1939, might join an administrator of before a count wrongful for with a count under the survival act so as to peril pursuing wrong remedy, avoid the recovery but (1873 recovery under either count excluded other PA 94; RS, 101, 5, 113). chap by § as amended 1885 PA Wrongful 6. Death — Death —Statutes—Amendment. wrongful Amendment of the death act in 1939 combined in one formerly wrongful action the distinct remedies for death and injuries resulting for in death for which the action had sur- vived, remedies, provided recovery eliminated common-law specific expenses pain of the decedent’s estate and and suffering pecuniary of the decedent as well as the loss to the surviving spouse kin, repealed next and the survival act wrongful to the extent it was inconsistent with the death act (1939 1-3). PA §§ Wrongful 7. Statutes —Survival Act — Death Act —Amendment. Statutory survival of actions remained in force after amendment wrongful death act in 1939 whether death was of 297). injured (1939 party or of the tortfeasor PA Wrongful Recovery—Pecuniary Compan- 8. Death — Death — Loss — ionship. Recovery wrongful by of losses for death is limited statutes to City of Smith v losses, life, money

pecuniary the actual value of which exclude food, anguish shelter, clothing, but include sorrow and 600.2922). (MCLA companionship Wrongful Remedy 9. Death — Death —Exclusive —Consortium. personal Action under the death act a decedent’s representative remedy is the exclusive where the decedent was by wrongful separate killed and his wife act does not have a against cause action for loss of consortium the tortfeasor who husband, only injured killed her as she would have if he were (MCLA600.2922). Wrongful Pecuniary Jury—Instruction 10. Death — Death — Loss — Jury. required A in a death action is to ascertain the taking loss suffered because of the of a life considering expenses and other relevant evidence, add, subtract, multiply. without instructions to or Construction—Legislative Acquiescence 11. Statutes — —Reenact- *3 ment. provisions by Where the basic of a statute have been construed provisions reenacted, subsequently the courts and these are may Legislature knowledge be assumed that the acted with judicial construction and that it intended the reenacted carry statute to that construction with it. Wrongful Pecuniary Companionship— 12. Death — Death — Loss — Statutes —Construction. wrongful by Supreme Construction of death statute Court allow- ing recovery companionship pecuni- loss as a ary presumed adopted loss Legisla- must be to have been change ture when it reenacted the statute without substantial developing after the series of decisions that construction (MCLA600.2922). Wrongful Companionship—Dependents—Stat- 13. Death — Death — utes. Allowing damages companionship pecuniary for loss of as a loss wrongful in an action for death does not conflict with the provision probate proceeds in the code for of the to distribution dependents decedent, dependency upon of the because another (MCLA person may 600.2922; arise out of 702.115). CL Wrongful Dependency—Next Ques- Death — Death — of Kin — tion Fact. Dependency determined the facts is to be and does not neces- sarily kin. next of exist between Wrongful Spouse—Next Companion- 15. Death — Death — of Kin— ship. only person deprived enjoyment by Life has value not to the of its act, wrongful spouse but also to the and next of kin who have companionship. lost benefits of association those summarized as Wrongful Damages—Question 16. Death — of Law. Death — jury may pain suffering A assess of decedent alive, instantaneously while he was but where a decedent was by wrongful expenses killed act and the of decedent’s estate are stipulated, question consider, is no for a there to where the only next of kin of decedent claim loss because of companionship, damages adopted by loss of if the measure of Supreme compan- Court in death actions excludes ionship compensable pecuniary as a loss. Wrongful Interpretation—Reenact- 17. Statutes — Death Act — Legislative Acquiescence. ment — Repassage by Legislature death act in 1965 change legislative acquiescence without indicated of the Michi- gan Supreme (MCLA interpretation Court’s of that statute 600.2922). 18. Contracts —Architects—Performance—Excavations. contractually representa-

An architect who was bound to.be premises duty supervise tive of the owner of had the general excavating manner in which a contractor and/or the contractually subcontractor made an excavation where he was inspect authority stop bound to with the work and to use his powers building perform- under a contract to enforce faithful ance. Architects—Excavations—Safety Employees—

19. Contracts — *4 Dangerous Conditions. authority proper An architect had the to enforce the execution of premises general a contract between the owner of and the put footings building contractor to for a and this included general obligation provide safety contractor’s to for the employees paid supervise where the architect to was a fee construction, general dangerous condition of the wall of an City of Smith v premises brought was excavation on the to the architect’s attention, authority stop he had to the work and make the necessary correction. Negligence —Architects—Directed Verdict —Evidence—Rea- Care —Proximate sonable Cause —Excavations. motion for Denial of defendant-architect’s directed verdict at the proofs plaintiffs charg- was not erroneous in an close of action negligence ing gen- that the architect’s caused the death of a employee when an eral contractor’s excavation wall caved in prima because the evidence was sufficient to establish a facie care, negligence duty, case of and the issues of due and breach factually probably all were doubtful and reasonable men would favorable-to-plaintiff agree where a view of the evidence specifically established that of the architect’s fee was 20% supervision project, authority allocated for the of the he had to provisions stop any work to enforce of the contract between the general safety require- contractor or to owner and the enforce ments, provisions by to one of the be enforced him was the condition, the excavation in a maintenance of safe he had wall, knowledge dangerous actual of the condition of the suffi- condition, authority to cient time and effect a correction of the knowledge employees working area, were in the wall, peril injury foreseeable; were in the zone of could be jury there sufficient evidence from a was which could reasona- bly infer that the architect did not meet the rule that reasona- person ordinary prudence' be exercised a ble care should probable danger under all the circumstances in view of the injury and could conclude that the architect’s failure to act negligence proximate constituted actionable and was a cause of resulting death. Wrongful Damages—Conscious 21. Death — Death — Pain and Suf- fering —Evidence. Determination, action, court in triad pain suffering there was not sufficient evidence of conscious part jury on the of a decedent workman to allow the to assessing damages supported by consider this as a factor testimony concerning the record there was no whether where instantaneous, death was whether the decedent was rendered unconscious, suffocated, or what was the direct cause of death. Judgment—Instructions—Statutes. 22. Interest — No instruction for the amount of interest be added money judgment required to a is since a a civil action 600.6013). (MCLA governs adding statute of interest *5 388 Mich Appeal Cross-Appeal—Delayed Cross-Appeal— 23. and Error — Court Rules.

Michigan Supreme Court should decline to deal with an issue cross-appeal days filed

raised in a more than 60 after leave to appeal granted because this was a clear violation of the provides cross-appeal may court rule which that a be filed days upon appellee service within 20 after of notice of the granting application appeal exculpa- order for leave to and no tory delay reason has been advanced the defendant for the (GCR 1963, 853.2[5]).

Dissenting Opinion Brennan, Black, Kavanagh, T. T. E. and G. JJ. Wrongful Damages—Pecuniary Damages—

24. Death — Death — Judgments. right Plaintiff in a death action has the to recover "pecuniary damages”; damages pecuniary damages; all are always expressed verdicts are in dollars and cents and they money judgments. result in Appeal from John Wayne, Spires, J., P. from Court of Appeals prior to decision. Submitted (No. 6, September 1972. 7 September 1972, Term 51,164.) Docket No. Decided November Complaint Smith, by Brunson as special guard- Smith, deceased, ian of the estate of Gary against of Detroit for death. granted Motion in limine precluding plaintiff prov- ing damages for loss of companionship. appealed Plaintiff Appeals the Court of on leave granted. Plaintiff appealed to Supreme for leave to appeal prior to decision Appeals. granted. Leave Defendant cross-ap- peals. Reversed and remanded for trial.

Appeal from Appeals, Court of Fitz- Division gerald, J., Bronson, JJ., P. and Holbrook and re- Gratiot, Corkin, versing remanding J. Leo W. City of Detroit Smith v Opinion of the Court (No. 8, 1972. 8 September September Submitted 53,470.) Decided Term Docket No. November 29, 1972. 395 reversed. App *6 Swarthout, Arlen administrator of

Complaint by Clark, deceased, F. against Leonard the estate of for damages and Lewis J. Sarvis for Leland Beard Inc., Nordstrom-Myers, death. added as Judgment of defendant. dismissal with- third-party prejudice Nordstrom-Myers, Judgment out for Inc. against no cause of action defendant Beard. Judgment against on a verdict defendant appealed to Sarvis. Defendant Sarvis the Court of Appeals. cross-appealed Plaintiff the Court of and remanded on the issue Appeals. Reversed damages. appeals. Plaintiff Defendant Sarvis cross- appeals. Reversed and remanded for entry judg- ment on verdict. (Jerome Jaques Quinn,

Leonard C. G. of coun- sel), plaintiff Smith. Glusac,

Michael M. Counsel, Corporation F. P. Hathaway Reilly, John and Maureen Assist- Counsel, Corporation ants for defendant City Detroit. Benschoten, G,P.

van Benschoten & van plaintiff Swarthout. (Carl H.

Early, Reynolds, Starbuck & Lennon counsel), for defendant Sarvis.

Swainson, involve the J. Both of these cases of the Breckon decision1 validity issue of the 1 (1970). Co, Breckon v Franklin Fuel 383 Mich op Opinion They have been death actions. consoli- opinion purposes dated for because they the same issues. basically involve v CITY OF SMITH DETROIT April nine-year-old Gary On Smith was playground apparatus killed when he fell off a upside apparatus position, an down then rolled top crushing on of his head his skull. On February 26, 1970, commenced an plaintiff action under against wrongful death act2 of Detroit negligent contending city and grossly negligent toys in the maintenance at the accident city’s playground where occurred and further the toys constituted a nuisance. Plain- trial, tiff moved that which was scheduled for March, 1972, adjourned be until after April plaintiff prove damages so that could *7 permits 1971 PA 65 the specifically recovery which damages of for loss of society and com- panionship death actions. The trial granted court and trial motion was set for 15, May 1972. Prior to the commencement trial, preclude defendant moved in limine to plain- tiff proving damages provided by from that amend- sought proof damages ment and to limit of only to permitted items under Breckon v Franklin Fuel (1970). Co, Breckon, pecuni- 383 Mich 251 Under ary for loss of recognized. granted

were not The trial court de- proofs fendant’s motion to limit and also denied motion plaintiff’s stay proceedings pending for a of appeal. Plaintiff filed for thereupon application an appeal proceed- leave to and a motion for stay ings in the Court of Appeals. These motions were 600.2922; MCLA MSA 27A.2922. Opinion of the Court 19, 1972. Appeals May on Court of the

granted application filed 1, 1972, plaintiff June On prior disposition to our with appeal to leave granted We leave to Appeals. 387 Mich 791. appeal. BEARD

SWARTHOUT Clark, decedent, was killed Leonard Plaintiffs in on an excavation caved 1963 when July on in the excavation as an working He was him. Inc., general the Nordstrom-Myers, employee of footings library build- putting contractor Plaintiffs administrator filed College. ing at Alma on wrongful death3 November alleging complaint was filed on Janu- complaint 1963. An amended negligence against Leland charging ary and Erection Com- Beard, Welding Beard’s d/b/a/ Sarvis, excavator, Lewis J. pany, Nordstrom- architect, original defendants. as third impleaded as a subsequently Inc. was Myers, court dismissed The trial defendant. party prejudice without against Nordstrom-Myers action immu- compensation theory of workmen’s on in a verdict of no cause A trial resulted nity. A Beard. verdict against action defendant architect, Lewis $25,000 against was returned the trial Appeals affirmed The Court of J. Sarvis. against liability as finding as to the court Sarvis, for a new trial but remanded defendant of Breckon. 33 Mich light determine appeal. granted leave App 395. We *8 parties on this by the issues are raised Several cases. issues are common to both appeal. Two loss of com- I. Whether 600.2922; MSA MCLA 27A.2922. 388 Mich Opinion op the Court proper a panionship element of damages 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 following raised the issue: III. Whether the governmental immunity statute

of 19704 applied should be retrospectively? Swarthout case In the plaintiff raised the follow- ing appeal: issues on

IV. question Whether of interest from the

date of death to the date of the verdict should have been submitted to the jury?

V. Whether question of damages for con-

scious pain suffering should have been submitted jury? to the in the Swarthout case raises the fol-

Defendant lowing issues on appeal:

VI. Whether the architect had the duty to super-

vise the manner in which the general contrac- tor and/or the excavating subcontractor made the excavation?

VII. Whether the architect had duty to protect

the workmen general contractor work- ing in the excavation 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 pro- fessional standards violated was submitted by the plaintiff?

The issue of loss of companionship as an ele- ment of damages has been before this Court on numerous occasions in In Wycko v years.5 recent 155; 3.996(101) etseq.;MSk etseq. 4 1970 PA MCLA 691.1401 5 Courtney Apple, Gnodtke, (1956); 345 Mich 223 Laan, (1960); Burns v Van (1962); Mich 331 Currie v 367 Mich 485 *9 647 v Smith op Opinion the Court Gnodtke, (1960), 331 our upheld Mich 361 a $14,000 the award of death Court, of a 14-year-old boy. for the death act opinion, overruled the in the course of its measure Court- by the Court in damages as formulated (1956). Apple, v 223 ney 345 Mich The Court in 232): Courtney had stated (p foregoing import cases and others of like "The indi- placed that interpretation cate the this Court has on provisions death act here of the involved. In an negligent killing for the action recover of a required, of the facts is young child the trier under the statute, the difference probably to determine between earnings, during minority, parent, to a contributed the cost of majority.” and maintaining educating such child until The Court in traced the history Court act in its in interpretation .6 ney back Campbell’s act Lord Justice pointed concerning damages (p out the measure of 335): "They judges] merely interpreting the were stat- [the day, the social conditions of the ute accordance with

which, mind presumably, legislative body had in legislation the enactment of the tion. The ideals, then under considera- times, rulings philosophy of its reflect the generation social conditions. It was the its prisons, capital 200 the debtor’s fenses, era when of some or more of- public flogging It and of the of women. was an agile ample could be found for the work fingers bodies and nimble of small children. Defoe’s England long past. approval not noticed with was He clothing region that at Colchester and the Tauton Co, Fiting, Michigan Sugar (1965); Heider v 375 Mich 375 Mich 440 Klusendorf, (1965); Reisig (1965); v Wilson 490 375 Mich 519 Inc, Carney, 376 (1965); Modern Mobile Homes Mosier v 376 Mich 342 (1970). Co, (1965); Breckon Franklin Fuel Mich 532 383 Mich 251 6 act, 1846, Viet, Fatal accidents 10 & c § op Opinion ' child or in the villages "there was not a round it of old, but, neglected if it was years above by its ’ ” parents untaught, could earn its bread.” Thus, not surprising in that era required courts loss be established wage benefit less costs as a measure *10 However, Justice Smith damages. (pp continued 337-338): concept "That of barbarous the pecuniary loss to parent

a from the death of his child should control our today reproach justice. decisions turning, to is We are still decision, guidance actually, for to 'one of the chapters history darkest in the of childhood.’ inYet legal other areas of the law the and social standards of 1846 are as dead as the postilions coachman and his guided who society through coaches of its the dark streets, muddy past gibbets and hung where still day’s the toll of the executions. In most areas the development of the paralleled enlightened law has people. of Examples conscience our abound. We no longer tolerate the intentional infliction of mental suf- fering. not, Illness from such cause is recognize, we now imaginary. right A privacy recognized, to is haltingly, true, is but a start has exploitation been made. The of parents children avaricious guardians and is no longer permitted, much less condoned. A combination of influences, arising all public from the of condemnation labor, child has resulted in almost universal State child- labor compulsory fact, and school attendance laws. In society, another, our by one means or attempts now * * * keep general children out of labor market. "It foregoing follows from the reject, that we now as prayed by appellant, the child-labor measure of the through loss suffered the death of a minor child, namely, probable wages his the cost his less of keep, all cases consistent we therewith now over- rule.”

The Court then went on to state loss op op Opinion the Court an element was companionship 339-340. act. wrongful Co, Fuel Franklin Mich 251 In Breckon held that Wycko the Court (1970), a majority and that to its facts loss of limited be should of damages. not an element PA effective March Legislature The permit- death act and amended companion- loss recovery ted ship.7 application its is limited

Thus, our decision 30,1972. March before cases commenced in Breckon was incorrect hold that We in that the measure interpretation in its include death cases does arguments companionship. of society loss thoroughly issue have been of this on both sides of this Court.8 We opinions in numerous stated of Justice Ad- dissenting opinion believe the law and we in Breckon states properly ams *11 383 Mich 280-299. opinion. adopt that hereby addition, by issues raised are certain In there deal with in in Breckon that we will majority the in Breckon stated that greater detail. The Court excessive dam- the issue of Wycko only dealt with However, the Court could it is clear ages. setting up a recovery Wycko in without uphold the wrongful death cases. damages of new measure reduced a verdict Wycko, judge In the trial had an $14,000 $7,500 that no child and stated $14,000. 361 Mich 341. Our earning capacity 14 that a child of Wycko did not contend Court in 7 part: 600.2922; provides in MSA 27A.2922 MCLA damages by action for death recoverable civil "The amount of may act, neglect also by of another or fault caused recovery for the loss of the include deceased.”

8 5, supra. See footnote 388 Mich Opinion op the Court $14,000. did, could earn If it then the Breckon Court would correct in be its contention Wycko never reached the issue of loss of compan- Court, ionship. however, Wycko did the exact opposite recognized that under today’s condi- tions a expense. minor child is an 361 Mich 341. Hence, the Wycko Court was forced to deal with the issue of what elements constituted the wrongful death act. If the loss of com- panionship is not an element damages, then any amount above medical and funeral expenses could not be recovered since the average child is not a breadwinner as he inwas the nineteenth century. Thus, in Wycko was not dealing with the issue of excessive but rather with the fundamental question of the proper elements of damages in wrongful death case.

The second point is that the Breckon majority felt that the failure of Legislature to act after the Wycko decision was not legislative evidence of intent that Wycko was correct. 383 Mich 276-277. We believe that the repassage by Legislature (after act decided) change without legislative indicated acquiescence interpretation Court’s Wycko. As Justice Breckon, stated Adams 295): Mich (p long "It has recognized been that where this Court given

has tion from the interpretation an to a statute with no reac- legislature in the form of statutory revi- sion, it may be legislative assumed there acquies- is cence in the meaning. statute’s persuasive Even more is the rule provisions that where the basic of a statute have been construed provisions the courts and these are subsequently legislature, reenacted may be *12 assumed legislature that the knowledge acted with the Court’s decisions legislature and that the intended the reenacted interpreta- statute to carry the Court’s Smith v Opinion of the Court McEvoy City of Sault Ste. Marie it. See: with tion (1925), 8, 172; Foss 230 Mich (1904), Gwitt v 136 Mich (1955), 101, 106, 107; 343 Mich 12; Clayton Estate In re (1957), Commissioner County Drain Wayne Jeruzal Court.) (Emphasis by 534.” 350 Mich Moreover, Court Breckon did limit the when immediately acted to Legislature Wycko, the Thus, of this Court. interpretation the change evidence conclusive that this not while is correct, strong Legisla- that the it is evidence was our decision when ree- cognizant ture was the death act change nacted without rule of quoted statutory the above 1965 and that one. proper is a construction is Thus, that loss of an we hold the damages under of pecuniary element Breckon is overruled. act and that case, other plaintiff In raised two the Swarthout three issues defendant raised appeal issues on opinion of the cross-appeal. on We believe issues. properly disposes these Appeals Court of case, city filed 395. In App contending governmental cross-appeal given retrospective should be immunity statute9 853.2(5) provides: application. GCR upon him notice days "Within 20 after service appeal, granting application leave to an order Ap- Court of or after decision whether before peals, appellee cross-appeal filed a claim of who has theretofore claim of right file a cross- shall have like form appeal and with like effect as under Supreme substantially Court in filing fee Rule 807. No required cross-appeal.” filing claim of shall be such case, In our appeal by leave to of cross- granted on June 1972 and the claim 3.996(101) etseq. 155; etseq.;MSA 9 1970 PA MCLA 691.1401 *13 637 Dissenting Opinion by Brennan, T. E. J. appeal August 25, was not filed until 1972. This is a clear violation of our Court Rules and no excul- patory reason has been advanced the defendant for the delay more than 60 days. We therefore decline to deal with issue. Detroit, City Smith v

In judgment is reversed and the cause is remanded for a trial opinion. accordance with this In Swarthout v Beard, judgment is reversed and the cause is remanded entry judgment on the ver- In plaintiff. dict. both cases costs to Kavanagh, J., T. M. C. and Adams Wil- liams, JJ., Swainson, concurred with J. E. Brennan, (dissenting).

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

The here, so long debated was never whether "pecuniary damages” could be awarded for loss of companionship. The issue was whether or not loss of society and companion- ship was a "pecuniary injury” within the meaning of the former statute permitted which the recovery " * * * * * * with pecuni- reference to ** * ary injury ”. argument that Breckon Wycko misread be- cause Courtney follow, overruled does presumed unless it be there is no middle ground earnings between loss of and loss com- panionship. Brennan, J. by E. Opinion T. Dissenting Rohm happened way, whatever

By (1972)? Stroud; Mich Kavanagh, JJ., with concurred T. G. Black Brennan, J. E.T.