Currie v. Fiting

134 N.W.2d 611, 375 Mich. 440, 1965 Mich. LEXIS 278

• Court: Michigan Supreme Court
• Decided: May 10, 1965
• Docket: Calendar 76, Docket 50,112
• Status: Published

Opinions

Adams, J.

This case involves a wrongful death action brought for the death of Linda Kay Hopkins, a 21-year-old girl, who was killed in a two-car collision. The trial judge awarded $3,147.14 for funeral and burial expenses, $1,000 per year for loss of society and companionship of decedent for the average life expectancy of the surviving parents, and $3,131-.18 interest from the date of the accident, for a total of $32,778.32.

I.

The first question is the right of the administrator to recover more than funeral expenses, there being no evidence of financial dependency by the parents of Linda, her sole heirs. CL 1948, § 691.582 (Stat Ann 1959 Cum Supp § 27.712).¹

It is the contention of appellant that the test for recovery of damages for the death of a person over 21 years of age is either financial dependency (MacDonald v. Quimby, 350 Mich 21) or assumption by deceased of an obligation to support a surviving next-of-kin (Judis v. Borg-Warner Corporation, 339 Mich 313; Rytkonen v. City of Wakefield, 364 Mich 86; Mooney v. Hill, 367 Mich 138).

Beginning with the dissent of Justice Talbot Smith in Courtney v. Apple, 345 Mich 223, 237, this Court has steadily moved away from the proposition —from which Justice Talbot Smith recoiled in that case — that the value of the life of a child or of any human being is such that there can be a recovery for funeral expenses and nothing more.

With Wycko v. Gnodtke, 361 Mich 331, a majority of this Court clearly recognized an expanded view of pecuniary damage as stated by Justice Talbot Smith (pp 338-340):

“What, then, is the pecuniary loss suffered because of the taking of the child’s life? It is the pecuniary value of the life. We are aware, of course, that there are those who say that the life of a human being is impossible to value, that although we will grapple mightily with the value of the life of a horse, of a team of mules, we will stand aloof where a human is concerned and assign it no value whatever. This kind of delicacy would prevent the distribution of food to the starving because the sight of hunger is so sickening. But we cannot shirk this difficult problem of valuation. In the case coming to us a ■life has been taken and it is our duty, as best we .can, to put a fair valuation on it. In so doing, we will keep in mind that the act is remedial in its character and our duty is to construe it liberally in favor of the beneficiaries.

“The pecuniary value of a human life is a compound of many elements. The use of material analogies may be helpful and inoffensive. Just as with respect to a manufacturing plant, or industrial machine, value involves the cost of acquisition emplacement, upkeep, maintenance service, repair, and renovation, so, in our context, we must consider the expenses of birth, of food, of clothing, of medicines,' of instruction, of nurture and shelter. Moreover, just as an item of machinery forming part of a functioning industrial plant has a value over and above that of a similar item in a showroom, awaiting purchase, so an individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship. The human companionship thus afforded has a definite, substantial, and ascertainable pecuniary value and its loss forms a part of the ‘value’ of the life we seek to ascertain.”

The human companionship of which Justice Talbot Smith spoke was testified to most eloquently in this case by the mother and father of Linda Kay Hopkins:

“Q. And are you the mother of the deceased Linda Kay Hopkins?

“A. Yes.

“Q. Could you tell us what the age of Linda was on July 20, 1960?

“A. She was 21 years old at that time.

“Q. And when had she become 21?

“A. August 24th, the year before. She would have been 22 in August.

“Q. The month following?

“A. Yes, following her death.

“Q. At the time of her death, Mrs. Hopkins, what was her occupation?

“A. She was a student at Michigan State, working on her business administration degree.

“Q. How long did she have yet to obtain her business administration degree at Michigan State?

“A. It would have been about 2 weeks. She would have been through as soon as the first summer term was over. She would have been through then and had her degree.

“Q. Up to that point, Mrs. Hopkins, had she qualified?

“A, She had qualified as a graduate and had graduated in the spring as a graduate, but she did not have her degree yet. It was because she had changed her course from retailing to business administration.

“Q. Was there a degree for business administration awarded to her at any time?

“A. Yes, it was awarded posthumously to her.

“Q. On July 20, 1960, Mrs. Hopkins, did you have any other children?

“A. No, we did not.

“Q. She was the only child?

“A. Yes. I was unable to have any other children. * * *

“Q. At the time of Linda Kay Hopkins’ death, other than when she was attending school, where did she live?

“A. Well, she always lived home with us, Mr. Cicinelli, when she wasn’t in school.

“Q. At the time of her death, Mrs. Hopkins, was she a single or married person at that time?

“A. She was single and she was not engaged to anyone.

“Q. Was she going steady with any boy friend?

“A. No, she wasn’t at that time. * * *

“Q. And what type of student would you say generally she was?

“A. She was a very good student.

“Q. And how would you describe the type of daughter, type of individual, type of person that she was?

“A. We thought that she was pretty wonderful. While we were very sad that we couldn’t have any other children, I just thanked God every day that I had her, because I thought she was just about everything you would want.

“Q. Was she obedient?

“A. Yes (Crying). I’m sorry. (Pause.)

“Q. What was her health generally at the time of her death?

“A. Her health was very good at the time of her death. She had had allergies from the time she was a little girl, asthma. We spent a good many years trying to find out what caused it, the allergies. By the time she was 18, by that time we had things under control and from then on she was a very healthy girl. As a matter of fact, she was cheer leader at Michigan State, one of them, and she would have to be healthy to do that.

“Q. That would be in reference to her athletic activities ?

“A. Yes, at football games.

“Q. Was that during all the time she was there?

“A. During 3 years that she was there, yes. She was a very good girl. We never had any trouble with her at all.

“Q. Did she engage in any church activities?

_ “A. She went to church every Sunday. She even did at college, which a lot of youngsters don’t do. She was very much a Christian. She didn’t drink or smoke, which a lot of girls of her age do. In fact, I thought we did a pretty good job of raising her.

“Q. No further questions.

“The Court: Do you have any cross-examination, Mr. Smith?

“Mr. Smith: I think not.”

The relationship was testified to by the father as follows:

“My daughter has been engaged in — was engaged in our business. She was graduating in the business administration school at Michigan State College. I had hoped she would come into the business and I had had every indication from her that she would. When you have one child and, — such as we had, my wife and I don’t have too much of a family, all we had was her, all that we were accumulating we hoped she would take over, and we hoped she would be able to run the business successfully, and she had worked in the business from the time that she — oh, probably from the time she was around 12 years old. She had worked in various capacities in my business as to what a child could do, partly because we thought it was good training for a child and partly because I wanted her to see all of our operations and to grow up with all of the various operations in my business preparatory to eventually taking it over.

“Q. Generally, so the record will show it, what type of business were you operating and had been operating at that time?

“A. We had 3 businesses we were operating at that time. There was the printing business, there was a corporation engaged in the rental of properties and there was a retail store.”

In Thompson v. Ogemaw County Board of Road Commissioners, 357 Mich 482, Justice Edwards writing the majority opinion stated as to consideration of pecuniary injury after the 21st birthday (p 489):

“A large majority of State courts hold that recovery may be had for the loss of benefits reasonably to be expected after the majority of the deceased. Inspiration Consolidated Copper Co. v. Bryan, 35 Ariz 285 (276 P 846); Bohrman v. Pennsylvania R. Co., 23 NJ Super 399 (93 A2d 190); Foerster v. Direito, 75 Cal App 2d 323 (170 P2d 986). See, also, Van-Cleave v. Lynch, 109 Utah 149 (166 P2d 244); annotation, 14 ALR2d 485, Measure and elements of damages for personal injury resulting in death of infant.

“We do not believe that the age of the child at death (whether before or after majority) is decisive as to consideration of loss of possible future support after the 21st birthday. Nothing in the Michigan statute pertaining to wrongful death suggests such a distinction.”

Why age 21 should set up a magic barrier baffles understanding in view of the total omission from the statute² of any statement of limitation as to age. The appellant, significantly, speaks of “the death of an adult child.” Linda Kay Hopkins, born August 24, 1938, was killed July 20, 1960. The defendant drove past a stop sign and struck her automobile while it was traveling on a through road. To say that her parents’ loss from her death would cease after August 24, 1959, is all that is needed to expose the falsity of that proposition.

In view of Wycho and Thompson, the court did not err in its award of damages for loss of society and companionship.

II.

But, it is argued, even if the wrongful death statute permits recovery, the probate code, PA 1939, No 288, ch 2, § 115 (CL 1948, § 702.115 [Stat Ann 1962 Rev § 27.3178(185) ]), does not, and the probate code, it is contended, is controlling. We do not regard this action, brought under the wrongful death statute, as being governed by the probate code. In any event, that question is not before us in this case and we decline to pass upon it at this time.

III.

The third question presented is whether the award of $26,500 should have been reduced to its present worth. The finding of the court reads as follows:

“In addition to the reimbursement for expenses, this court holds that the compensation for loss of society and companionship should be $1,000 per year for the average expectancy of the deceased’s parents. In other words, $26,500.”

The parents had an average life expectancy of 26.5 years. The finding of the court that the award should be at the rate of $1,000 per year and the total award of $26,500 oblige us to conclude that the trial court failed to reduce the award to present worth. It was held error in Nagi v. Detroit United Railway, 231 Mich 452, to instruct a jury to give prospective damages, not reduced by computation of present worth. Here, it was error on the part of the judge to fail to make such reduction.

IV.

The final question raised by the appellant is whether the court erred in awarding interest from the date of death. It is the claim of the appellant that, since this is an action founding in tort, interest does not run on the unliquidated claim. Such is not the rule. The problem has recently been analyzed in the case of Wilson v. Doehler-Jarvis Division of National Lead Company, 358 Mich 510, 519, wherein an award of interest was allowed “from the date compensation would have been due had it been paid voluntarily.” Where a claim accrues as of a certain date and can be ascertained or computed as of that date, we think the better rule is to award interest upon the claim from that date forward. Larsen v. Home Telephone Co., 164 Mich 295. In this case the total injury and whatever award was to be made therefor accrued with the death of Linda Kay Hopkins. From that date forward, it is proper that the defendant should pay interest in order that there may be a full award of damages. Certainly, if prospective damages are to be reduced to present worth, it is equally just that damages which have accrued should carry interest from the date of accrual, whether that date be death or otherwise.

In this case, tried to the court, it did not err in awarding interest from date of death on those damages which accrued at death. While unnecessary to this decision, it follows that, in the event of a jury trial, a jury should he instructed to ascertain the date when damages accrued and to add interest on same from date of accrual to date of its verdict, even as, in the reverse situation, a jury is instructed 'to reduce future damages to present worth.

V.

Appellee, by cross appeal, contends that, since the trial judge allowed only the funeral bill and an amount to compensate the parents for the loss of the society and companionship of their daughter, it is clear he did not include in his award as an element of damages any sums for loss of investment in the deceased, loss of services, or exemplary or punitive damages. As Justice Talbot Smith observed in Wycko v. Gnodtke, supra, (p 339), a human life is a compound of many elements. In the search for the elements of a particular life a jury might consider “expenses of birth, of food, of clothing, of medicines, of instruction, of nurture and shelter”, and “value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship.” We would not necessarily limit the elements to those mentioned by Justice Talbot Smith, but, where applicable, certainly all should be included in the verdict. The trial judge’s award appears to have left out of consideration any element other than future companionship of the daughter of which the parents were deprived. If this be true, as can readily be determined upon remand, then such additional damages should be assessed as were not considered by him.

VI.

With regard to the matter of exemplary or punitive damages, as was noted by Justice Black in Burns v. Van Laan, 367 Mich 485, 493, this is a statutory action. There is no provision in the statute for an award of exemplary or punitive damages. None should he awarded.

The case is remanded to the trial court for further proceedings in accordance with this opinion. Both parties having prevailed in part, no award of costs shall be made to either party.

T. M. Kavanagh, C. J., and Souris and Smith, JJ., concurred with Adams, J.

1 See, currently, OLS 1961, § 600,2022 (Stat Ann 1962 Rey § 27A-.2922),

2 PA 1925, No 146, as amended (CL 1948 and CLS 1961, § 401.1 et seq. [Stat Ann 1960 Rev §16.121 et seg\]).