*1 1960] v. Gnodtke. v. GNODTKE.
WYCKO Cоnstruction—Legislative Acquiescence. 1. Statutes — by doing nothing, by legislating, not not legislates legislature A silent, interpretations of by acquiescing in statutes keeping made. Damages Minor Child. of
2. —Death damages for of suffered adopted rule measure hitherto The child, wages probable less through a minor the death of keep, of his is overruled. the cost Death Act. 3. Death —Construction in character and should be wrongful is remedial death act (CL liberally its beneficiaries construed in favor of §§ 691.581-691.583). Companionship. Pecuniary Value — 4. Same — many compound is a a human life value of companion- society elements, including protection, mutual and 691.581-691.583). (CL 1948, ship §§ Damages. 5. Same — the death death act for damages under Recovery of wage- including losses, the child’s limited minor 691.581-691.583). (CL capability §§ profit £6] {1] [4] [3] [2, Measure “Sentimental” Measure in death elements 50 Am death of infant. 16 Am 11. 16 Am 16 Am 16 Am loss of and elements Jur, Jur, Jur, Statutes § Jur, Jur, Death References infant. Death §§ Death Death elements damages in marital, losses, § § 14 ALR2d 485. ALR2d 485. 57. 199. including § filial, 326. 216. for Points action mental parental care for in Headnotes personal wrongful personal anguish, injury death. injury loss of guidance, as resulting in resulting society, ALR 36Í-Michigan Minors—Damages—-Remittitur—Prejudice. 6. Same — jury’s $14,979.50 of remittitur Trial court’s order verdict of 14-year-old boy, all in $8,479.50, for death of excess in- Jield, cluding expenses error, $979.50 funeral and burial as the $14,000 patently oppressive verdict so as to indicate *2 prejudice, being by application the remittitur occasioned pecuniary loss, child-labor standard an outmoded fiction (CL 1948, 691.581-691.583). §§ J., JJ., C. dissenting. and Carr and Dethmers, Kelly, Appeal' (Thomas N.), from Berrien; Robinson J. April (Docket Submitted No. Calendar 48,322.) September No. Decided 16, 1960. by Wycko,
Case E. John administrator of the es- Wycko, against tate of L. deceased, John Armand damages arising Gnodtke and Emil Gnodtke for 14-year-old boy by the death of a struck automobile. plaintiff. granting for Verdict Order new trial un- appeals. less rеmittitur Plaintiff filed. Reversed entry judgment upon and remanded for verdict. George plain- Childs, Keller D. S. and Theron for tiff. Seymour,
Seymour Seymour (Dale & A. of coun- sel), for defendants. general, J. case before concerns, us Smith, negligently for the life of child killed. Specifically jury it is whether or not a award of
approximately parents 14-year-old $15,000to the of a boy was excessive. simply far
So are facts concerned we will say walking, completely that the deceased was off highway, boy with some other He scouts. was killed an automobile owned one defendant and suddenly driven the other. The car ran onto the plaintiff and hit of shoulder the scouts. The here administrator of the is the estate one of them. v. G-nodtke. damage testimony To substantiate tbe claims, was. boy’s dependability, as to the introduced trustworthi- and ambition. was ness, established that he helped Upon family his father and brothers work the farm.. plus
such evidence the $14,000, awarded expenses. funeral and buriаl $979.50 judge justified trial proofs much. said too He said that plus $7,500, an award $979.50 expenses, boy age funeral burial since no capacity earning had the “could have indicated verdict,” and he ordered a new trial unless re- mittitur were filed.
Thus we come once to a more consideration of the problem “pecuniary par- loss” suffered ents gan deceased minor child. What we in Michi- many have common with done, courts,, other require hypothetical is to subtraction, from the earnings prior majority, specu- of the child to his *3 rearing.1 of his any,, lative costs The if difference, say parents’ pecuniary the we loss. We have com- prior dissenting opinion,23upon mented, ain the un- computation (for of real the nature we of the courts nothing upon requires) imposed the act so have thus parents. present
the In the bereaved case, damages however, is the of measure once application attack, mоre under but also its the trial court. Campbell’s predecessor act3 was the
Lord of the wrongful death acts. American did not contain provided “pecuniary simply loss.” It the words every wrongful [for death] “in action that such the they damages may give pro as think injury resulting portioned the from' such death.”4 leading case Blake v. It was Midland R. Co. [4] 2 Courtney Apple, [3] 1 Courtney Apple, Fatal Officially, accidents v. v. fatal act, accidents [345] 345 Mich Mich 1846, 9 & 10 act, 1846, 223, 223, Vict, and 237 9 & 10 eases there cited. (dissenting chap 93, Viet, chap § 2. opinion). 93.
334 361 5 interpreted provision (1852) to limit the damages probable pecuniary loss to to the award limitation has been followed beneficiaries, including statutes, American that of in some of the Tiffany, agree Michigan. however, that: We * ** phraseology spite differences “In of these applicable principles to measure the under generally vis., same, all acts these yecuniary loss measured are resulting the action to the from beneficiaries аccordingly, considered cases have, death.”6 We analysis jurisdictions in our without other precise statutory differentiating according to the wording employed.7 requirement pecuni interpretation today early
ary cases, which even found in the loss precedent, reflected moral are followed Lees,8 legal times. In Bramall their standards 12-year-old girl,9 the case a considered court Despite fact negligently that she had killed. “living age remained, nevertheless, she attained such “peculiarly then a burden was hence home” and at parents.” father, however, succeeded [her] pounds. theory securing His was verdict for a year or the child would two the course that in money factory taken “and back gone into have year parents.” A two in earnings for the its future, “not to found held sufficient however, granted trial was nisi for a new A rule an action.” n .ton where had been statute the father for the death spring Chapman v. [9] [8] 6 7 Tiffаny, 29 LT The 18 QB See, speaks it was is still assizes at also, original stricken (A (OS) as follows: Bothwell, Death Ensor v. said, & E a 111. report NS) Liverpool with reference the- words 4 Jur Compton, Wrongful does not “Bramall v. loss.” (21 (NS) pt 1, 1180, 1181, girl aged 12 years.” in *4 “pecuniary loss”: LJ 110 Neb 1857), Act QB to the Nebraska statute from which mention the sex of the 233, (2d Lees (cid:127) [*] ed), (cid:127) (tried Eng Rep § “The loss under Sir Charles before me at at NW 35). an action p child. Crornp- 459), In 335 Gthodtke. exchequer report. court. find no further We Apparently the case was settled on some such basis as the bar of our State so well in knows these child death cases. More fortunate was the father in Duck pounds worth v. Johnson.10 Here verdict for 20 “by boy years was obtained reason of the son, 14 age, having falling been killed aof wall consequence negligence.” in of the defendant’s father, unlike Mr. Bramall, was able show that years. working his son had been Chief 2-1/2 expressing warning Pollock, Baron after that this persons act was not intended “to enаble sue re spect imaginary damage” thought of some that the jury’s boy’s determination of the “value of the serv him” boarding clothing and the ices, cost of should not be disturbed, and the rule nisi to enter discharged. verdict for the defendant was judges ruling so They we do not condemn. merely interpreting were the statute in accordance day, with the social pre conditions of the which, sumably, legislative body had mind in the legislation enactment of the then under considera rulings philosophy tion. The reflect the times, ideals, its and its social gen conditions. It was the prisons, eration of the debtor’s of some 200 or more capital public flogging offenses,11 and of the ample women. It was an era when work could be agile fingers found for the bodies and nimble of small England long past. children. Defoe’s was not He approval12 noticed with that at Colchester and in the “ region clothing Tauton ‘there was not a child or villages years round of above 5 old, but, if neglected parents untaught, it was its ” Halevy its could earn bread.’ writes employed children “number of factories was so 11 Holdsworth, History As H & 653 quoted N Trevelyan, English LJ Ex English Law, p Eng Rep Social History, p 997). 284. *5 Michigan Reports. 361
336 great proportion to the adnlts it was out question working of to restrict hours of the restricting at the time the same children without apprenticeship of children of adults.”13 hours factory amounted to what Professor to Trevelyan, owners Trinity College, Cambridge, of
Master “The traffic.”14 atrocities as “a slave described has visited girls” boys reported upon it is these Encyclopaedia “literally Sciences,15 Social the driven chapters form mills, in the one darkest death history Age of childhood.” limits traffic. In 1816the control the in an effort to were set age parish apprenticeship 9 underground employment children under the but the forbidden,16 was 1843,17 10 not forbidden until under was
of children years passage progenitor just 5 before only against somber It is this back statute. our fully significanсe ground can understand that we supra, Case, Bramall made in the the comment “living getting girl at home and that nothing.” already age long 12 she was At at the mill. overdue day precedents our from which
This, then, was the employment day of children of when tender come, a pecuniary years accepted practice and their was family to the both substantial and contributions provable. surprising that the courts statutory society into a have read words should jury] may they pro- [the think “such portional resulting injury from such death” requirement loss, but, not moreover, by wage loss established in industrial work. [483] 13 14 16 George English Law, p Vol Lord Trevelyan, English Cited (1946 ed), describing 3, Shaftesbury’s act, Child Trevelyan, Labor, 313. chap 139, Social English pp 413, 5 & History, § Social exploitation 414. Vict, cited History, chap p 483. in 13 See, also, Encyc p 542. § Holdsworth, History very young [5] children Brit v. G-nodtke. damages. measure of Other "benefit-less-costs losses intangible unreal and at were time in our history legal the courts would have nо truck what Chief Baron in Duckworth, Pollock termed *6 supra, “imaginary only money losses.” meant Loss money loss, and loss from the death of a child meant wages. imaginary. his lost All else was only reality king’s shilling. the concept
That this barbarous the loss parent to a from the death of child his should control today reproach justice. is a our decisions We are actually, turning, guidance still in decision, to chapters history “one of hood.” Yet in other the darkest of child- legal
areas of law the social standards 1846 are as dead coach- postilions guided man and his who the coaches of its society through muddy past the dark and streets, gibbets hung day’s where still toll of the execu- development In most tions. areas of the law has enlightened paralleled people. conscience of our Examples longer abound. We no tolerate the inten- suffering. tional infliction of mental Illness from recognize, imaginary. not, such cause is nowwe A right privacy recognized, haltingly, it is true, exploitation has but start made. The been of chil- by parents guardians long- dren avaricious is no permitted, er much less condoned. A combination arising public influences, all from the condemna- tion labor, of child has resulted almost universal compulsory State child-labor and school attendance society, by laws.18 In fact, our one means or an- attempts keep other, now gen- children out of the eral labor market. Yet there still exists in the law repulsive this remote and backwash of time and civil- ization, society, untouched the onward march of 18See State Child-Labor Bulletin Standards Combined Pub Department lications of United States of Labor and Bureau of Labor Standards, (1952). Michigan tell precedents honor us we alone
where value solely must measured a child life of peddled day the skill when he the standards strength at the fac- of his back of his hands tory argument gates. are not unaware of "We legislative support subsequent proposition silence, interpreting must statute, to decisions acquiescence legislative in the inter- be construed thoughts pretation be found thereon will made. Our opinion Sheppard concurring in our expressed view, with there National Bank.19 We authority, legislature appropriate that a citation of by doing nothing, legislating, legislates not keeping silent. reject, foregoing now from the that we It follows prayed appellant, the child-labor measure of as the minor through the death of a loss suffered namely, probable wages the cost child, less keep, *7 of his all cases therewith and consistent we now overrule. pecuniary suffered loss because then, is
What, pecuniary taking It is the child’s life? of the aware, of that course, are there life. We value say being of a human that life who are those is. although grapple impossible we value, will to with of mightily horse,20 of the life a a thе value of a mules,21 will stand aloof where human we of team assign it whatever.22 no value This and is concerned natural to been or become more been Rep value 350 Mich think where [20] [21] [19] setting Ellis E.g., Jones 339). where [348] strong [*] and almost universal Mich v. 135, 145-149. a Christian Hyatt * * v. a human life has been held most Hilton, and price upon Texas 577, prevalent v. 599-603; see, also, [78] religion Adams, & Mich 150 the reason P. standard, enlightened human R. among has exercised 16 Mich Co., repugnance (6 life, 125 La a of nations in LRA repugnance the rule is to be found in that Van 454, any attempt its most beneficent Dorpel refined, among enlightened sacred. [18] proportion Am which seems to 192: “For v. Haven-Busch So and St Among 582, Rep 438). to estimate especially barbarous they myself, influence, nations Am have have Co., its St so I Gnodtke. delicacy prevent kind of would the distribution of starving sight hunger food to the because the is so sickening. problem But we cannot shirk this difficult In coming valuation. the cases to us a life has duty, been taken and it our put as best we сan, to doing, fair keep a valuation on it. In so we will mind that the act23is remedial in its character and duty liberally our is to construe it in favor of the beneficiaries.24 compound value of a human life is a many analogies elements. The use of material
may helpful respect and inoffensive. Just as with plant, manufacturing a to value involves upkeep, or industrial machine, acquisition emplacement, costs repair, service, maintenance and renovation, expenses in our we so, context, must consider the clothing, .birth, of food, medicines, of instruc- just nurture tion, of and shelter.25 Moreover, anas forming part machinery functioning item of of a in- plant has a value dustrial over and above that of a awaiting purchase, showroom, similar item a so family an individual member has value to part functioning others as social and economic society unit. This value is value of mutual Jury the its loss barbarous manners and social low prescribed time Comment, *8 .711-27.713).—Reporter. is often found to be 54 NW LU Rev 254. and half civilized cupied. 24Accord, [25] “To the cultivated and light estimate CL See been, Verdicts—Excessive position Dublin While this has been the natural of the Christian money to some standard of value or Cook v. §§ which human life & 691.581-691.583 nations, the social seale which the deceased Lotka, extent, Rafferty, revolting.” carefully graduated by religion enlightened mind, looking or The the cause of 200 Wash Inadequate, has been common to find a fixed and degradation, Money compensation (Stat has sacred, been 234, Value of a their inhuman Ann result, 39 Mich SBJ [240] and of the held the relative 1959 Cum for human idea of (93 among it has at P2d Man; at human life in customs, comparatively compensating 376). Supp them. importance (Jan) life, Weinstein, the same have oc- §§27- their 11; 361 340 companionship.26 human
protection, word, ain companionship definite, has a substan- afforded thus pecuniary its value and loss and ascertainable tial, part seek to of the life we of the “value” forms restricting the noted, it will be are,We ascertain. money pecuniary losses, actual value losses anguish and not the sorrow child, the life of the not these are its This is because caused death. they are unreal. The and because not suffered genius capable, law were it left of the common is damages, legisla- ascertaining but the alone, remedy creating Food, shelter, act forbids. tive clothing, companionship, obtain- however, and open money market, on the have an ascertainable able Finally situation, value. some unusual there is if, reasonably wage-profit forthcoming, truth, (an expectation capability in infant of an excess wages keep, em- over the measure heretofore ployed) expectation the loss of such should not be pecuniary disregarded as one losses suffered.27 case, however, In suсh assessment is made as a true, of fact and not of fiction. It course, matter that proofs, in all will uncertainties there these to the nature we case, due are constrained but privilege that it is not the of him to observe wrongful whose act caused loss to hide behind the un- very wrong in the certainties inherent situation his created. has testimony charged by heard here termed the we have child-labor what court on may properly consider the Mich 482. tection.” economic interests 98, 106), Thompson (113 P See Cf. facts is Thoughtful discussion of related Holder wherein Also, not limited to 48 LRA NS Bond v. Ogemaw County v. loss Key System, held that family United Railroads plaintiffs, proof of loss “Although damages must be as loss of Ann Board 88 Cal Cas value 1912C, 50). App2d problem comfort, society fixing Road of the loss of such non- San dollars Commissioners, Francisco, sueh loss by Edwards, cents, measured 159 Cal trior pro P2d but J., *9 v. Gnodtke. damages. a its As result deliberations
measure
plus
funeral and burial
$14,000,
award
its
judge
(cid:127)expenses.
trial
aside as excеssive.
This the
set
age
earning
$14,000
child this
had a
that no
said
He
(cid:127)capacity,
and ordered
$7,500,
one
re-
but
jury’s
is
error. The
award
not
mittitur. This was
carry
gross
to
its own
set aside unless so
as
to be
prejudice.
proofs
But an
award
(cid:127)obvious
patently oppressive
not so
as meet this
$14,000is
judged
only in
standards,
modern
not
our
test,
jurisdiction,28 but elsewhere.29
(cid:127)own
into which
was. But
error
then, there
Error,
betrayed
direct and natural
was the
the court was
upon the
insistence
continued
Court’s
result
pecuni
employment
child-labor
standard
may have been in
ary
the situation
loss. Whatever
brought
wages
their
home
the children
.1846,
today
employment
gainful
plant,
mill,
their
mine, and
judge
it.
we know
The trial
fiction and
an arrant
ground
a matter of
on sound
been
have
saying
didn’t think the deceased
in
a
that he
(cid:127)economics
capacity.
earning
But we are
$14,000
(cid:127)child had
dealing
dealing
a
are
with fic
economics. We
not
today’s
not
conditions,
fiction that under
tion,
is a breadwinner. He
minor child
those
expense,
expense. A
it is
He is an
blessed
not.
permit
expense.
nevertheless an
We
true, but
wage-earner solely
a
in an
fiction
he is
use
accomplish
justice.
If,
a
semblance
in
effort
purpose,
our
as it
the fiction must
is,
this is
deed,
operate
up
in both directions. We cannot
.allowed
for zero
and zero
verdict
dollars
cents
hold
jury,
theory
all,
on the
that the
after
loss
they evenly
computations
balanced,30
made its
senting opinion).
30 Courtney Apple,
Elliot v. A.
See eases
cited
J. Smith
345 Mich
Courtney
Contractors,
v.
Apple,
for the fiction and thus an though substantial, award still within the bounds of n made. reasоn, is employed pecuni- The fiction now as the measure of ary perpetuates loss should be' abandoned. It an at- completely the titude towards value a child’s life repudiated by legislation enlightened modern and the policies jurisdiction. child-welfare of this It does- grant violence intent act, which is to a recovery person” whenever a death “of a is caused by wrongful per- act of another. The child ais by judiciál son and not to be out read of the act acquiescence theory in the chief baron’s that his life- wage-earner.' no has value save as that of a imposed bookkeeping upon juries- The bloodless our must, exploitations savage century of the last perpetuated longer no our courts. order, subject granting trial new to remittitur entry judg- reversed and case remanded for upon jury. appel- ment verdict Costs to lant. Souris, JJ., Black, Edwards, Kavanagh, and con- J.
curred Smith, with (dissenting). Carr, J. The traffic accident from- n public- which this case highway resulted has occurred on a county August in Berrien on 26, 1957.. boy years age, decedent, Plaintiff’s was struck an automobile, driven defendant Armand (cid:127) other, Gnodtke owned defendant, sustain- ing injuries that resulted immediate death. Plain- 348- Gnodtke. brought claim action for administrator tiff part Armand ing negligence of defendant on the recovery right on the based Gnodtke, Michigan act.* death which returned a before tried
The case was plaintiff $14,979- sum in favor verdict expenses appears amounted that the funeral ..50. to being pain no dam- instantaneous $979.50,and death suffering part ages on the included were alleg- for a new trial moved Defendants of decedent. ing excessive the verdict was as a basis judge agreed the claim and trial .amount. The days from the a new trial unless within ^ordered plaintiff should remit the order the date of . n amount $8,479.50. in excess of From verdict plaintiff appealed. order has .such in the case is whether the trial issue The basic making judge order abused discretion *11 controversy (cid:127)question. in the inter- Involved provisions pretation pertinent of the death act, of n above question and the further whether cited, damages computation to of rule with reference recognized in heretofore this nature, in a case this per- in as be modified such manner State, should damages na- the facts to award of a mit the trier of considered as ture that hitherto have been within may scope in con- of the statute. be noted plaintiff requested that counsel for the nection charge computing jury in dam- trial court ages : employ as a consideration into take “You damages,
yardstick the investment of measure of birth, of his parents the time their child from in hospitalization prenatal, care including and medical infancy schooling up through confinement, <of expenses.” including funeral death, time of his Ann 1959 Cum [*] PA No Supp § 27.711 amended et seq.}). (CL 1948, § 691.581 et aeq. [Stat Michigan Reports. [Sept.. judge charging jury-
This the trial do, refused to recognized interpretation with the accordance the death act. In substance the was told that damages the measure of would be the value of the- parent services John L. to his over and expense educating, clothing,, above the cost and maintaining together payment him, with the of' ordinary expenses expected might other be to- during years majority. be incurred, before Tes- timony plaintiff on tending offered behalf of to- show that his decedent anwas industrious lad, he-did on including chores his father’s 10-acre farm, picking of berries and similar and that tasks, he- good ofwas habits. He had not worked for others pay. for The record does not disclose how far he particularly had advanced in school, nor that he was gifted any special regard. testimony parents others, bearing sons, minor was introduced as. question
on the as to the value the services might expected reasonably that decedent to have- attaining majority, rendered, before to and for the benefit of his father. undisputed
It is that at common law there was no- right negligently action or feloni ously causing being. the death human rea With sons for such rule we are not here concerned. In England (9 & 1846 statute was enacted Vict, chap 93), Campbell’s per known as Lord act, recovery mitted the benefit of such case for the
designated surviving relatives. Said stat damages being ute did not terms refer to based pecuniary injury on the sustained such relatives,, English but was so construed courts. The- *12 existing Michigan situation was well stated Lin & Co., coln v. Detroit Mackinac R. 179Mich 195, (51 710), LRA NS as follows: (xNODTKE. WyCKO V. following American summarize “We English death loss act stat- authorities: 93), commonly chap Viet, & 10 called of 1846 ute Campbell’s and the laws of a act,’ various sim- ‘Lord gave a it, been modeled after new kind that have ilar law, to the common for the of action unknown cause designated surviving rel- of certain classes benefit not take relatives do the cause action Such atives. by by to them to the deceased transfer operation the statute to recover or otherwise, are enabled law, but loss to them- wrongful taking off caused .de- selves life cedent, the continuation of would have whose beneficial them. The been action accrues to the surviving beneficiary reason of the the to by by mentioned in the statute injured person death caused wrongful strictly proper act another. It is say that it a cause of survives; action which given by §§ is rather a action new CL (How 13702,13703), [2d §§ ed], Stat which can brought, solely not for the benefit of estate but for the benefit of the beneficiaries named the stat- ute.” legislature at the session of 1848 year,
enacted Act No 38 of said which was entitled: requiring compensation “An causing act death by wrongful neglect act, or default.” The first section of said act created the cause ac- tion indicated and the title, second section di- brought rected that the action must be and in -the- representatives personal name of the deceased person, and the amount recovered should be for the- exclusive benefit of the widow and next of kin there- pro- of to be distributed to such beneficiaries in the portion per- fixed statute for the distribution of by persons property dying sonal left intestate. In every give- such action was authorized to damages might just be deemed fair and “with *13 361 injury resulting from such to reference of kin of such deceased next the wife and death, to person.” inception appears of the death that in It thus compensation for to were limited
act the by injury” “pecuniary the beneficiaries sustained recovery. phraseology of section under such No PA some extent modified to was (CL § [Stat amended as so section Said 27.712]) §Ann follows: read as by, brought and in “Every shall be action such rеpresentatives personal of such of, names every person, in recovered and the amount deceased persons and in to the distributed shall be action, such provided proportions in to the law relation property persons personal left distribution every jury dying action the intestate; and such they may give fair shall deem and such injury resulting just, from to the with reference persons who to death, those en- such damages when recovered.” titled to such reenacted PA The death act was substance 1939,No above cited. The title and both sections original and a third section amended, act were provision containing repealing was added. "With changes made section we are not concerned in the act broad- instant case. title ened read as follows: causing requiring compensation “An act death injuries resulting wrongful and act, death
neglect prescribe default; or measure dam- ages thereof; recoverable and the distribution repeal inconsistent acts.” comparison purposes For with section 2 of the prior statute, we set forth section 2 of re-enact- ment of 1939as follows: v. Gnodtke. brought by, in the “Every action shall be such representatives personal de- of such of, names every person, court such action ceased jury, may give damages, the court or as, *14 pecuni- just, the to with reference deem fair and shall per- ary injury resulting death, those to such damages when re- to who entitled such be sons damages medical, for reasonable and also the covered expenses hospital, which the for funeral and burial compensation for the and liable reasonable estate by undergone suffering, conscious, pain such while and period intervening during person the deceased injuries inflicting of such and of the time the between person however, or Provided, That such death: his damages shаll be of that persons entitled to such by entitled to inherit the law, would be who, class property
personal
tate. The
pecuniary
distributed to
the
had he
intes-
deceased
died
every
action for
amount recovered
injury resulting
such
from such death shall be
spouse
surviving
next
kin
the
and
pecuniary injury
propor-
and
suffered such
who
days
entry
the
of such
tion thereto. Within
after
judge
judgment, the
before whom such
was tried
case
certify
probate
shall
the
court
successor
to
jurisdiction
having
of the estate
such deceased
entry
person the
and
thereof,
amount
date
and
probate
by
opinion
shall advise the
court written
as
representing
pecuni-
the
amount thereof
total
the
ary
by
spouse
surviving
loss suffered
the
all
and
proportion
the next of kin, and the
of such total
spouse
by
surviving
the
suffered
and
loss
person,
next of kin of such deceased
as
of the
each
shown
upon
the
evidence
trial of
the
introduced
pаyment
providing for
After
the
of the
case.
hospital, funeral and burial ex-
medical,
reasonable
probate
penses for
the estate
the
liable,
provided
court shall determine
law
man-
the
representing
ner in which the amount
the total
spouse
surviving
the
loss suffered
and
proportionate
distributed,
next of kin shall
and
surviving
to be distributed to
share thereof
.spouse
of the
of ldn. The remainder
the next
proceeds
judgment
ac-
shall be distributed
of such
cording
laws.”
to the intestate
legislature
while
will be noted that
pre-
language
changing
statute
some
recovery
pain
viously
permitting
in force, and
change
expenses,
suffering
not
and funeral
did
recovery of
for the benefit of
the basis for
to inherit the
had he died intes-
the class that
would be entitled
law
property
personal
deceased
emphasizes
language
in-
tate.
In
used
fact,
solely
legislature
allow
tention
injury”, resulting
“pecuniary
on
death,
from the
any
participatе
part of
award
those entitled
specific
to the
under
statute. The
reference
“pecuniary
surviving spouse
suffered
loss
emphasizes
the next
legislature obviousíy
kin”
fact that' the
further
permit
did
intend to
*15
recovery
damages
on behalf of those entitled
any
pro-
thereto on
other or different
than as
basis
originally
in the
vided
death act as
enacted.
dispute
opportunity for
the inter
as to
There is no
provisions
placed
pretation
this Court on the
recovery
damages
relating to the
act,
the death
pecuniary injury,
sustaining a
of those
benefit
original
enactment of
stat
time
including
present time.
In
in 1848 to
ute
Bayfield,
Chicago
R.
37 Mich
Co. v.
& Northwestern
87),
(16
Neg
Justice
Am
Cas
Chief
Cooley,
damages
writing
pointed
out
Court,
for the
causing
any
negligently
death of
recoverable
required
person
the statute to be assessed
were
pecuniary injury resulting to
reference
In
when recovered.
entitled to
those
Mynning
&
Detroit,
L. N. R.
accord therewith
v.
257,where was said with reference
Co., 59 Mich
(p 262):
provisions
death act
Ihe
v. G-nodtke.
language
“It
noticed that
will be
of the statute
damages may
recompensed
includes
be
by pecuniary compensation,
exceeding
the stat
utory
upon
amount; and which should be based
some
or
well-definedfacts
known circumstances in the case,
susceptible
proof
—such
are
facts as
of some
under
governing
admissibility
the well-settled rules
testimony.
ings,
sufferings
injured
mental
feel
any
injuries
susceptible
other
which are not
compensated by
being
money
consideration to
those who are entitled to the benefit of the statute,
necessarily
are therefore
excluded
elements to
taken into
be
consideration
determin
ing
the amount of
this class
cases:
Chicago
Bayfield,
(16
& N. W. R. Co. v.
The rule of construction in these deci repeatedly has been followed in later cases, sions City among Beach be cited St. Joseph, 305; 192 Mich Elliott v. Detroit United Railway, 97; Colburn, 226Mich Covellv. 308 Mich 240. These decisions and numerous others of like import recognized that the loss to re for the benefit of covered those entitled thereto be determined in should the case of death prospective earnings minor with reference his majoi’ity, expenses arrival at less the until of support. care, education, placed
The construction on the death act *16 from time of Court the enactment thereof to the present general recog- in is accord with the rule as throughout country having nized States stat- Michigan jurisdic- of like nature to the act. utes tions In confining recovery to the loss sus- 361 Michigan particular class it is members tained recovery for generally can be no sola that there held loss. annotation See so-called sentimental tium or seq. Among other decisions 23 et ALR 11, R. v. Vree general Central Co. field is L ed Ann Cas land, S Ct US brought 176). under action was There the 1914C liability employers’ to recover dam act the Federal employee killing alleged negligent of an ages for the Commenting on engaged commerce. in interstate said, it was under statute action nature in. 69): (pp part congress purpose to save a was “The obvious upon dependent right certain relatives of action injured, employee wrongfully for the loss and an financially by resulting damage reason to them declaring wrongful lia- after Thus, death. injured
bility employer servant, to the employee, of the death such in case adds,—‘or representatives, personal for the bene- or her to his surviving children widow or husband and fit of the employee; then of em- none, if such and, of such ployee’s parents; the next if then of and, none, employee, injury upon dependent for such kin implied express death,’ is or limitation et cetera. There no liability the death in which to cases instantaneous. any independent cause of action is “This cause no and includes had, the decedent which of action might in- for his have recovered he which beyond It one survived. if he had upon altogether proceeding had, the decedent —one liability principles. for the loss It is a different upon dependent damage relatives sustained pecuni- liability for the therefore decedent. only. ary damage resulting for that to them and giving action the benefit of an “The statute ,family decedent is members certain essentially which' the first act. ever identical *17 v. Gnodtke. provided arising for cause of action out of the being, death human that of 9 and 10 Victoria, Campbell’s known as Lord act. This act been, has distinguishing many features, its reenacted in States, and both in the courts of the States and England operating has been construed not as aas аny right injured continuance of of action which the person would have had but for death, but as a independent purpose new or cause of action for the compensating dependent certain members of the family deprivation, pecuniarily, for the resulting to wrongful them from his death.” The above Sipes decision was cited and followed in Michigan Central Co., R. 231 Mich 404, which damages the action brought for under the Fed- eral statute. Plaintiff had verdict in the trial court, which was the amount ground reversed in this Court on the that supported
thereof was excessive and not proofs. specifically recognized It was purpose may the analogous regarded the statute, which permit to State death acts, towas recov- ery “pecuniary for the loss” sustained the widow child the decedent in said case. dealing must be borne mind that we are here wholly with a of action cause on based a statute. legislative recovery. Without The of action there could be no power legislature prescribe the measure damages, they may for whose benefit be recov- open ered, and the nature and extent is not thereof, question. emphasized repeatedly As has been original Court, from the enactment of the death present, act to of are we concerned with the matter for loss. measure of such damages is not the value of the life the decedent. legislature provided has not based Obviously any theory. on evaluated human life cannot be being
on a basis. A human property, recovery suggested and measure of appellant this Court is counsel urged adopt purpose is at variance theory adopted legislature. of the statute as are not Court not amend statute. We This *18 legislative powers. If with rule for the the invested determination prescribed in the
of as stat- intangible of to items an is extended include ute to be рermit recovery a on nature, in other words to based injury grief, feelings, companionship, to loss of or intangible other that cannot elements be measured may bring legislature basis, alone on a about the arguments
such result. The
of counsel should
body.
that
be
addressed
the
insofar
crux
this case
as
come now
We
legislature
present
The
is concerned.
the
statute
scope
purpose
change
act
the
of the
1939 did
except
provision
expressly
No
forth therein.
set
as
damages other than for
made for
was
provisions
prior
controlling
of the
statute
The
loss.
continued
force
thereto were
reference
knowledge
legislature
did with
this
effect, and
interpretation placed thereon
the courts
as to the
provisions
re-enacting
basic
In
State.
legislature
intend-
the act it must be assumed
carry
itwith
re-enactment should
that such
ed
interpretation
original
time
observed
thereof
rule,
established,
well
1848.
statute
legislative
has been
enactment
that when
body
adopted by legislative
previously
construed
regarded
embodying
adoption
as
will
Commenting
given.
interpretation
a on situation
so
City
McEvoy v.
Court, Sault
nature, this
of this
with refer-
said
Mich
Marie, Ste.
interpretation
that in sub-
of a statute
ence
prior act:
re-enacted a
stance
Joslyn
legislation
v.
enacted,
this
“When
458]
[74
City
had determined
Detroit
Mich
v. Gnodtke.
of the
construction
act of 1879. If some other State
adopted
legislation,
this
it
had
would be held to have
adopted it with that construction.
Is
not clear
reasoning compels
say
that this same
legislature,
tous
that our
enacting
legislation, adopted
placed upon
Joslyn City
construction
it in
v.
De
troit”
Recognizing
principle applied
in the above
Wayne
Foss,
case are Gwitt v.
In the instant case the circuit submitted the jury case legislative the to accordance with setting damages forth the nature of the intent, that might jury be recovered in the action if the found in plaintiff, .specifying favor also the method determining damages for loss on the part charge given of decedent’s father. The appears However, correct. it from the verdict re- jury that the did not turned follow the instructions. testimony of brings examination the Our the case to accord conclusion, us the with that of the trial justify proofs failed to the size the judge, that the verdict. plain- granting for a new trial unless the motion In judge the circuit said remittitur to a tiff consented opinion him: filed in the it deal- jury that and understood knew was. “The specified in the stat- .as ing the rule (1) Expenses interpreted courts, vis: ute and (2) present burial; funeral and of decedent’s any, during earnings, re- if of decedent’s value mainder minority, present value less of his period, during support the same cost just jury fair be as found such amount proofs submitted. under the question in the amount no involved “There undisputed expenses, in the and burial the funeral the amount $14,000 This leaves sum $979.90. jury above- found under second say that court not hesitate rule. This does stаted amount to excessive under believes was influ- can conclude that rule. surely, possibly by sympathy also some enced other obtaining motive in such result. opinion, own ex- writer of this based on his “The up- period covering perience and observation years, purchasing pow- during which the wards of 60 money progressively cannot decreased, er of has to any boy age bring himself believe qualities personal with all of the excellent decedent, and traits of character decedent shown testimony possessed, con- have and which are special qualifications ceded, with no but skills or earnings community obtaining average above in the background, in which he have had and with his could lived, *20 earning capacity this indicated ver- dict, even under modern conditions. damages “Believing in be that this case should proofs particularly on the of the basis substantial, by. proofs what feels bound the court
submitted, justify, jury awarded, has rather thаn what v. Gnodtke. duty and feels in itself bound to correct the verdict. “Accordingly, may granting an order be entered plaintiff defendants’ motion for a new trial unless days shall within 15 remit all of the amount of the verdict rendered herein excess $8,479.90.” finding
We think the judge as indicated language justified. fully appears above transcript from testimony part filed as original return to this Court that he followed the proofs carefully, having in mind the issues in the proneness sympathy part case and the on the supreme an action of this nature. The court of California in Bond United Railroads of San Francisco, 159 P 366, Cal 48 LRA NS 50), Ann 687, in his Cas Mr. 1912C cited Justice Smith opinion, construing allowing a State statute recovery resulting for death from wrongful neglect, act statute ma differed terially from act, took occasion com recognized ment on the claim under that the-rule might California court excessive verdicts be ren duty judge the trial dered,' and the cases, part 286): (pp saying danger regard to thе of excessive verdicts “With say. remedy we that
from this can rule, entirely judge pre- practically committed who If at the trial in the court below. sides he does his duty carefully weigh will he the evidence himself and will not a verdict to its allow stand for full gives if amount he more than believes may reasonably supposed that it loss be plaintiff actually by being deprived will suffer earnings, society, pro- comfort, of the services, tection of the child. The rule allowance deprivation society, made loss from apparently protection son comfort, tled and cannot set-
now the be disturbed. It is us, evident to. come however, us, cases have before *21 361 (cid:127)356 to verdicts in which extravagant it often leads
that the a supposed allow fact, compensation jury, injured feelings, instead of con- emotions sad verdict to the actual loss. their fining comfort, said that society, it cannot he "While any pecuniary never of benefit either рrotection or or must be ad- gaining money property, saving that connection can seldom be mitted traced from one to the other. should be insistently Juries allow cautioned not to the sorrow compensation and distress which ensues from always death, such nor for a loss which is remote or con- jectural in the case. The trial particular court should be to set where there vigilant aside verdicts is reason to this has or that done, pas- believe been sion, prejudice, or has influenced the sympathy more than the give reasonably facts warrant. We have cause to fear the trial courts sometimes act that on the that can theory they responsibility shift ipatter court, to the and that an appellate verdict can be corrected on This appeal. .excessive is a mistake. Our over excessive power when the facts are exists the excess law, a matter of or is at such as to appears suggest on the blush, passion, prejudice, corruption first Hale Val- v. San Bernardino jury. (See part Co., Traction 83]; P ley [106 Cal North & R. Co., Wheaton v. Beach M. Cal the trial court must bear the whole 591.) Practically, case.” responsibility every the trial fairly judge be said think it We on him in the resting responsibility recognized that his action in grant- case instant trial on the part of a refusal in the event new trial ing based on the remittitur was consent the plaintiff and the applicable proofs familiarity this nature. Gen- litigation lawof principles rests a new trial the granting speaking, erally court. the trial discretion judicial in the largely WyCKO V. GrNODTKE. Deffenbaugh Freight Corpora v. Motor Inter-State Chesapeake Lierop tion, Mich 183; Van & Co., 702; Ohio R. 335 Mich Murchie v. Standard Oil Company, 355Mich 550.
Under the record instant case any that said there was on abuse of discretion part judge entering of the trial the order from plaintiff appealed. which an has is not Such order unusual connection with motions new trials in personal injury City Hart, cases. In Cabana v. 333), plaintiff’s Mich 287 decedent, 327 who was 16 ALR2d
years age came to time, at the his by coming lamp post death in contact with charged electricity. brought was The action was theory municipality guilty on of that defendant was negligence post, in the maintenance consequently provisions was liable under the jury death act. The case was to the submitted returned a verdict in the of $7,483.63. sum mo- On granting! tion for new an trial order was entered plaintiff the motion unless to a consented reduction verdict, of $5,000. sum That was done, latter sum was sustained this Court, it. being supported by proofs. found that it was proofs Under the think the case at bar we judge properly the trial acted and that his conclu- support that the evidence sion did not the verdict returned was well-founded. There part, on no abuse discretion and the order appeal which the has been taken should be affirmed. C. J., J., concurred with Dethmers, Kelly, J. Carr,