Courtney v. Apple

76 N.W.2d 80, 345 Mich. 223, 1956 Mich. LEXIS 383

Opinions

Carr, J.

This case has resulted from a traffic accident occurring on a public highway in St. Clair county on November 10, 1953. Plaintiff’s decedent, a child at the time 2 years, 11 months and 26 days of age, was struck by an automobile driven by the defendant, sustaining injuries resulting in death. The declaration filed by plaintiff in the case alleged negligence on the part of the defendant in a number of particulars, including excessive speed, lack of caution in the operation of his motor vehicle, and failure to make reasonable observations as to the presence of others on the highway. The recovery of damages was sought for pain and suffering, for loss, of such amounts as the child might have earned after attaining maturity, and for expenses attributable to. the injuries. The answer of the defendant denied liability.

On the pretrial hearing held by the circuit judge who later tried the case, it was apparently conceded that death was instantaneous, that the cause of action was predicated on the death act,

* and that the declaration alleged items of damages not recoverable under said act. The order entered set forth the following with reference to plaintiff’s claims for damages:

“(a) Expenses of decedent’s funeral and burial, were stipulated by the parties at an aggregate sum of $700.

“(b) The present value of the decedent’s earnings, if any, during the remainder of his minority, less the present value of the cost of his support during the same period.”

It was further stated in the pretrial order that the triable issues, should be:

“1. Whether the defendant was guilty of negligence which caused or contributed in causing the decedent’s death.

“2. If such negligence is found by the jury, the amount of damages suffered by the surviving parents measured by the rule stated above.”

The case was tried before a jury. The charge of the trial judge submitted for determination the issues of fact as determined at the pretrial hearing. The rights and the claims of the respective parties were fully and clearly covered. With reference to recoverable damages the jury was told that the funeral expenses had been stipulated and that if a verdict for the plaintiff was returned it should include the amount on which counsel had agreed, namely, $700. The method of determining the present value of decedent’s earnings during his minority, less the cost of his support, was also explained.

The jury returned a verdict in favor of the plaintiff for the sum of $700, the amount of the funeral and burial expenses. Judgment was entered on the verdict. The following day the trial judge entered an order sua sponte granting a new trial with reference to the matter of damages. Prom such order defendant, on leave granted, has prosecuted an appeal in the nature of certiorari. In substance it is the claim of 'appellant that the case was properly submitted to the jury, that the verdict as returned was permissible and proper under the record, and that there was no basis for the order granting a partial new trial. Appellee contends that the trial judge properly exercised his discretion in making the order from which the appeal has been taken.

In allowing a new trial with respect to damages the circuit judge indicated that errors had occurred on the trial that resulted, or may have resulted, to the prejudice of the' plaintiff. He stated that counsel for defendant in his argument to the jury had discussed the matter of contributory negligence on the part of the mother of the child. The argument of counsel is set forth in the record before us, presumably in full, and we have examined it carefully. It does not appear that any claim was made therein that Mrs. Courtney was guilty of negligent conduct contributing to the child’s death. At the pretrial hearing any issue of contributory negligence was eliminated, and in his charge to the jury the judge specifically stated that no such question was to be considered in the case. It appears that counsel for defendant submitted a request to charge with reference to possible negligence on the part of the mother, but the request was denied. There is no showing in the record to indicate that the jury could have been influenced by any such consideration.

As a further possible error, the trial judge in his order for a partial new trial indicated that in his opinion the proofs would have justified a charge that defendant was guilty of actionable negligence. This statement was further amplified in written reasons later filed. The record before us does not contain any of the proofs other than brief excerpts from-testimony given by plaintiff and by Mrs. Courtney. In consequence, we are unable to say whether a charge of the character suggested would have been proper. However, it is evident that the jury found defendant negligent. Otherwise the verdict for $700 would not have been returned. Such being the situation, it cannot be said that the failure to give a charge of the character in question, if justified by the proofs, was prejudicial to plaintiff.

The principal reason assigned in support of the order for a partial new trial is that the jury should have returned a verdict for a substantial amount to cover the pecuniary loss sustained by the father as a result of the death of the child, in addition to the amount allowed for funeral and burial expenses. In considering this question it must be borne in mind that the right to recover damages for wrongfully causing a death rests wholly on the statute. The remedy under the death act, above cited, is exclusive, and the recovery of damages is necessarily limited to those specified by the legislature and sustained by proofs. Section 2 of the statute (CL 1948, § 691.582 [Stat Ann 1953 Cum Supp § 27.712]) reads, in 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.”

In accordance with the interpretation placed on the above-quoted language of the statute, in numerous decisions of this Court, the jury in the instant case was charged that, if they found for plaintiff, they should allow:

“The present worth of the future services to his father which you find John Martin Courtney would have rendered had he and his father continued to live, between the date of his death and his 21st birthday. Prom this aggregate sum you should deduct the present worth of whatever amount you find Mr. Courtney would have paid out or incurred for maintaining John Martin Courtney during that same period.”

On behalf of plaintiff proofs were introduced as to the respective ages and health of the parents of the child, and as to his age, health and disposition. Otherwise it does not appear that the jury had before it evidence to assist in determining to what extent the value of services which the child, had he lived, would have rendered to his father between the date of death and his attaining majority, exceeded, if at all, the cost that the father would have incurred in maintaining the child during said period. The determination of this matter was left to the jury under an instruction that permitted the members to draw on their own experiences in life. The evidence was sufficient to require submission of the question of the parent’s damages to the jury, as this Court has recognized in prior decisions. However, sncli limited testimony necessarily compelled each member of the jury to rely on his own knowledge, experience and judgment.

A charge similar in substance to the one given in the instant case was approved in Morris v. Radley, 306 Mich 689, 697. Such approval was in accord with prior decisions. In Rajnowski v. Railroad Co., 74 Mich 20, 26, it was said:

“The defendant’s counsel produced witnesses who were fathers' of children, and had reared them from infancy to manhood, and inquired of them what was the pecuniary value to its parent of a male child, from the age of 5 years until it arrived at the age of 21, over and above the care, education, maintenance, and support of such child.”

In Rouse v. Detroit Electric Railway, 128 Mich 149, 155, the Court cited the prior decision in Hurst v. Detroit City Railway, 84 Mich 539, 545, relating to the measure of damages for the death of a minor, and said, in part:

“The law requires in this class of cases that the administrator must show that some person has suffered some pecuniary injury by the death. The statute does not imply that damages and pecuniary loss necessarily flow from the negligent killing. This is a matter that must be made to appear by the proper allegation in the declaration, and proof of the fact. Hurst v. Detroit City Railway, supra. See, also, Nelson v. Lake Shore & Michigan Southern Railway Co., 104 Mich 582, 588; Walker v. Lake Shore & Michigan Southern R. Co., 104 Mich 606, 616. These damages must be limited to the pecuniary damage sustained by those legally entitled to support. Van Brunt v. Cincinnati, Jackson & Mackinaw R. Co., 78 Mich 530.”

See, also, Peklenk v. Isle Royale Copper Co., 187 Mich 644; Beach v. City of St. Joseph, 192 Mich 296, ; Elliott v. Detroit United Railway, 226 Mich 92, 97.

Counsel for appellant in their brief direct attention to Covell v. Colburn, 308 Mich 240. This was an action for damages for negligently causing the death of a 15-year-old girl. The jury returned a verdict for plaintiff in the sum of $650. Medical, hospital and burial expenses were shown in the sum of $596.47. The balance was regarded as the amount found by the jury to represent the difference between the cost of her support and what she would have earned had she lived until reaching her majority. Plaintiff asserted that the amount was inadequate, citing prior decisions. This Court declined to disturb the verdict of the jury, saying that (p 244):

“The amount of the verdict was a question upon which different persons might and probably would disagree. Measuring the value of the life of a child in terms of dollars and cents is abhorrent and a jury ordinarily would be prone to place it at a very large amount if the evidence warranted it; Nevertheless the rule of law is that the recovery must he limited to such damages as are proven. The child’s future earnings and whether she would live to be 21 were problematical. The amount of the verdict in the instant case is justified by the testimony.”

In Baker v. Slack, 319 Mich 703, the action' was brought under the death act for the recovery of damages. Plaintiff’s decedent was at the time a widow, 63 years of age, in good health. She had children but none dependent on her. The jury returned a verdict for $1,690, of which the sum of $190 was the amount of decedent’s funeral and burial expense. Defendant appealed on the ground that there was no proof tending to show other elements of damage. This Court found that the testimony did not warrant a conclusion that the decedent suffered pain between the time of the injury and her death a few minutes later, and, further, that there was no proof that anyone was dependent on her for support and maintenance, or anyone to whom she was morally or legally obligated to contribute. It was also pointed out that there was a lack of testimony as to her probable cost of maintenance had she lived her normal expectancy of life. The judgment was accordingly reversed, and the case remanded with directions to enter judgment for the amount of the funeral expenses only.

The foregoing cases and others of like import indicate the interpretation that this Court has placed on the provisions of the death act here involved. In an action to recover damages for the negligent killing of a young child the trier of the facts is required, under the statute, to determine the difference between probably contributed earnings, during minority, to a parent, and the cost of maintaining and educating such child until majority. It is, of course, possible that in a given case a jury in following the' instructions of the judge as to the law may come to the conclusion that such cost of maintenance and education may equal or perhaps exceed possible contributed earnings. Apparently the jury in the instant case did so, and we must assume that the conclusion was reached in good faith and in the light of the best judgment, and the experiences, of the jurors. It may not be inferred because of the failure to return a substantial verdict on the ground that a pecuniary loss was sustained by the parent that any improper motives or considerations whatsoever prompted the verdict. Had the jury been charged that they must include in their verdict a substantial amount to cover the pecuniary damages sustained by the father, such instruction would have been inconsistent with the statement of the proper method to follow in determining damages. It would also have been at variance with the plain intent of the statute and with the cases, some of which are cited above, construing and applying said statute.

Counsel for plaintiff in their brief rely on Black v. Michigan Central R. Co., 146 Mich 568, as did the trial judge in his order for a partial new trial. There the action was brought to recover damages for the alleged negligent killing of plaintiff’s son, a boy 7 years and 1 month of age. Plaintiff had judgment and defendant appealed claiming, among other reasons advanced for reversal, that there was no evidence to support a finding that pecuniary injury had been sustained. Testimony was introduced, as in the instant case, to show the age and condition of health of each of the parents and also the health and disposition of the boy. The primary question at issue was whether such proof was sufficient to justify submitting the issue of damages to the jury, with the right to the members thereof to rely on their own judgment and experiences. Upon this question the Court said (p 575):

“The jurors have all been boys. The average juror knows the conditions which surround a boy in a family like that of plaintiff. We think it cannot be said, as a matter of law, that there was no basis upon which to find a verdict for pecuniary loss.”

The Court found no reversible error and concluded that the finding of the jury with reference to the damages sustained should not be set aside. The decision may not be regarded as holding that in every case of this character the trier of the facts is bound to award substantial damages for pecuniary injury. Such holding would be clearly at variance with later decisions above cited. It may be noted, however, that the Court clearly recognized that, given certain material facts wtih reference to the ages and health of the parties concerned, the members of the jury might rely on their own knowledge of living conditions, and their judgment and experiences, for assistance in determining the issue.

The opinion in the Black Case, supra, referred to the decision of the Missouri court in Parsons v. Missouri Pacific B. Co., 94 Mo 286 (6 SW 464), quoting an excerpt from the opinion. The language so quoted must be interpreted in the light of the facts involved. The action was one to recover damages for the negligent killing of the plaintiff’s son, who was at the time of the age of 18 years and 4 months. The proofs disclosed that decedent was employed by defendant as a brakeman. The facts were such as to clearly indicate that a pecuniary loss was suffered by plaintiff as a result of his son’s death. The Missouri court recognized the genéral rule to be applied in determining pecuniary loss sustained by a parent for the negligent or wrongful killing of a minor child. In holding that the verdict of the jury, in the sum of $5,000 was excessive, it was said (p 300).:

“There was no evidence tending to show what wages he was earning in that capacity, or might possibly earn in the coming 32 months, and none as to what his support would cost; but it is apparent, from common experience, taking the most favorable view of his possible earnings, and supposing during that whole period he never was sick nor lost a day; that he was furnished with clothes sufficient to last him to the end of that period, and that he was promoted as fast as could reasonably be expected by a faithful and intelligent young man of his age, yet in reason he could not, during that term, have earned, over and above his support, more than $50 per month, or $1,600 for the period. To this let there be added reasonable funeral expenses, say $200. As his death was instantaneous there were no other expenses. We then have $1,800 as the amount that, within the bounds of reason, might be given to the plaintiff in the way of damages for compensation for possible loss to him by reason of the death of his son. Can anyone conceive of any additional pecuniary benefit the plaintiff could hope to derive from his son during his minority?”

It may be of interest to note that the above decision was cited in Oliver v. Morgan (Mo, 1934), 73 SW2d 993. This was an action for damages under the Missouri statute to recover for loss sustained by plaintiffs as the result of the death of their minor son, a child 6 years of age, who was struck and killed on a public street in St. Louis by an automobile driven by defendant Morgan. The jury returned a verdict in favor of the defendant, and plaintiffs appealed. It was claimed, among other assignments of error, that the trial court erred in instructing the jury as to the measure of damages. Such instruction involved a statement of the rule, generally recognized, that from the value of the child’s services during minority must be deducted the reasonable cost of his support and maintenance during that period. In declining to hold that the charge as given was. erroneous, it was said (p 997):

“Clearly this instruction is correct in limiting the damages to be allowed to the pecuniary loss suffered by the plaintiffs and nothing can be allowed as solatium for grief or mental anguish for the loss of the society and companionship of the deceased. * * *" It is also clearly the law that the basis of the recovery is the value of the child’s services to the-parents during the child’s minority, and that from this must be deducted the expenses of the support and maintenance of the child during that period. * * * This instruction is attacked because it requires the jury to make a mathematical calculation of debts and credits and ascertain the net value in money of the child’s life to the parents. And while the jury may find a loss to the parents, this loss may be wiped out by the debit items such as for support, with the result that while the jury may find for plaintiff so far as liability is concerned, yet it may render a verdict for defendant because there is no net damages.”

Counsel in their briefs have referred to the case of Willsen v. Metropolitan Street Railway, 74 NYS 774. The jury there awarded $119 by way of compensation for pecuniary injury resulting from the killing of a minor child. The trial court thought the verdict inadequate and granted a new trial. Apparently the order was not appealed. However, in Terhune v. Joseph W. Cody Contracting Co., 72 App Div 1 (76 NYS 255), the appellate court reversed an order of the trial court setting aside a verdict returned by the jury on the ground that the damages were inadequate. The statute under which the action was brought required “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” The court said (p 4):

“We are bound by the express provision of this ¡statute, which limits a recovery to the pecuniary loss caused to the next of kin by the decedent’s death; and, while we cannot say that the death of a particular human being has caused his next of kin no pecuniary loss, we are equally unable to say, in. the case of the killing of a young child under 6 years •of age, that the death of the child has caused pecuniary loss to the child’s parents. In such a case the question, under proper instructions, must be left to a jury; and their verdict, in the absence of any evidence to justify an inference that it was rendered under a misconception of the question submitted to them, or influenced by prejudice or sympathy, or •other influences than that of a desire to fairly estimate the loss sustained, should not be interfered with. It is not disputed but that the verdict itself may be of such a character as would justify an inference of this kind, but in the case before us such an inference could not be drawn; and, upon the record as it comes before us, we think the action of the trial judge in setting aside this verdict was not justified.”

Of like import is Gubbitosi v. Rothschild, 75 App Div 477 (78 NYS 286). These decisions, on appeal,, are in accord with the general rule as recognized in this State.

From the record before us it does not appear that any error occurred in the trial of the case. The issues were factual in nature and were submitted to the jury in a charge consistent with the language of the statute under which the action was brought. There is nothing to indicate that the jury in arriving at its conclusion was influenced by improper considerations, or that there was any failure to follow the instructions given. Such being the situation the-verdict as rendered should not have been set aside. We find in the record no basis for such action. The trial judge was in error in entering the order for a partial new trial.

The case is remanded to the circuit court with instructions to set aside the order from which the appeal has been taken and to enter judgment on the verdict of the jury.

Dethmers, C. J., and Reid, and Kelly, JJ., concurred with Carr, J.

PA 1848, No 38, as amended by PA 1939, No 297 (CL 1948, § 691.581 et seq. [Stat Ann 1953 Cum Supp § 27.711 et seq.]).