Brown v. Department of State Highways

• Decision Date: 05 August 1983
• Docket Number: Docket No. 60922
• Citation: 126 Mich.App. 392,337 N.W.2d 76
• Parties: Philip A. BROWN, Administrator of the Estate of Ronald Joseph Cleary, deceased, Plaintiff-Appellant, v. DEPARTMENT OF STATE HIGHWAYS and State of Michigan, Defendants-Appellees. 126 Mich.App. 392, 337 N.W.2d 76
• Court: Court of Appeal of Michigan — District of US

Page 76

337 N.W.2d 76

Philip A. BROWN, Administrator of the Estate of Ronald Joseph Cleary, deceased, Plaintiff-Appellant, v. DEPARTMENT OF STATE HIGHWAYS and State of Michigan Defendants-Appellees.

Docket No. 60922.

126 Mich.App. 392, 337 N.W.2d 76

Court of Appeals of Michigan.

Submitted Jan. 6, 1983.

Decided June 7, 1983.

Released for Publication Aug. 5, 1983.

[126 MICHAPP 393] Elden W. Butzbaugh, Jr., St. Joseph, for plaintiff-appellant.

[126 MICHAPP 394] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Carl K. Carlsen, Asst. Atty. Gen., and Thomas J. O'Toole, Sp. Asst. Atty. Gen., for defendants-appellees.

Before MacKENZIE, P.J., and R.B. BURNS and QUINNELL ^*, JJ.

PER CURIAM.

In this action for wrongful death, plaintiff claimed that defendants failed to properly maintain a highway as required by M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996(102). After a nonjury trial, a judgment for plaintiff was entered for $9,435. Plaintiff appeals by right and raises various questions concerning damages and costs.

I

Plaintiff argues that the damages recoverable in an action for wrongful death include the estate which the deceased might reasonably have been expected to accumulate had he lived out a normal lifespan. Plaintiff relies on O'Toole v. United States, 242 F.2d 308, 311-313 (CA 3, 1957), a case decided under the Delaware wrongful death statute. M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922 allows the recovery in an action for wrongful death of "such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered". In Baker v. Slack, 319 Mich. 703, 714, 30 N.W.2d 403 (1948), the Court held that damages for loss of a potential inheritance were not recoverable in an action for wrongful death, but the Court's holding was based on the requirement of "pecuniary injury" which was later removed from the statute by 1971 P.A. 65. We need not determine [126 MICHAPP 395] here whether Baker v. Slack retained its viability after the statute was amended. In its findings of fact, the trial court noted that the deceased had a history of meager earnings, indebtedness, and bankruptcy. The trial court's findings show that it regarded the claim of a potential estate as unproven. Plaintiff has addressed himself on appeal to the trial court's alternate holding that such damages were not recoverable as a matter of law, but plaintiff has made no argument and cited no authority to show that the trial court's findings of fact in this regard were erroneous. Under the holding of Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959), plaintiff has therefore abandoned such a contention.

II

Evidence was before the trial court that the deceased's three daughters had obtained $25,000 in settlement of their claims for lost support, society, and companionship in an action brought under the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, and arising out of the same incident as this action. Plaintiff argues that the trial court erred by deducting that amount of the dramshop action settlement from plaintiff's damages here. Panels of this Court have reached conflicting results in attempting to resolve this issue. Compare Mason v. Lovins, 24 Mich.App. 101, 117-119, 180 N.W.2d 73 (1970), and Putney v. Gibson, 94 Mich.App. 466, 478-487, 289 N.W.2d 837 (1979), rev'd on other grounds sub nom Putney v. Haskins, 414 Mich. 181, 324 N.W.2d 729 (1982), with Barton v. Benedict, 39 Mich.App. 517 522-524, 197 N.W.2d 898 (1972), and Reno v. Heineman, 56 Mich.App. 509, 511-512, 224 N.W.2d 687 (1974).

Damages for lost society and companionship are [126 MICHAPP 396] recoverable in an action for wrongful death arising out of the failure of a governmental unit to properly maintain a highway. Endykiewicz v. State Highway Comm, 414 Mich. 377, 324 N.W.2d 755 (1982). However, the trial court found that, under the circumstances presented here, any loss of society and companionship was minimal. The trial court found damages for lost support of $9,435, but expressly declined to deduct any portion of the dramshop action settlement from that amount. Plaintiff has abandoned any contention that the trial court erred in determining these amounts because plaintiff has not argued or cited authority in support of such a contention. Mitcham v. Detroit, supra. In view of the trial court's findings, any error as to whether the amount of the dramshop action settlement should be deducted from plaintiff's damages was clearly harmless.

III

Plaintiff also argues that the trial court erred by declining to allow expert witness fees and expenses for videotaped depositions to be taxed as costs. The power to tax costs is wholly statutory; costs are not recoverable where there is no statutory authority for awarding them. Jeffery v. Hursh, 58 Mich. 246, 258, 25 N.W. 176 (1885); Hester v. Detroit Comm'rs of Parks & Boulevards, 84 Mich. 450, 47 N.W. 1097 (1891); Kuberski v. Panfil, 275 Mich. 495, 497, 267 N.W. 730 (1936); Gundersen v. Village of Bingham Farms, 1 Mich.App. 647, 648-649, 137 N.W.2d 763 (1965). Costs in the Court of Claims are controlled by M.C.L. Sec. 600.6449(1); M.S.A. Sec. 27A.6449(1), which provides:

"If the state shall put in issue the right of claimant to recover, the court may, in its discretion, allow costs [126 MICHAPP 397] to the prevailing party from the time of the joining of such issue. Such costs, however, shall include only witness fees and officers' fees for service of subpoenas actually paid, and as attorney fees the same amount as is provided for trial of cases in circuit courts."

In construing a statute, words which have acquired a well-defined technical meaning are to be understood in their technical sense. Pitcher v. People, 16 Mich. 142, 147 (1867). However, where the words used have no statutory definition or controlling judicial definition, the words must be construed according to common and approved usage. State ex rel. Wayne County Prosecuting Attorney v. Levenburg, 406 Mich. 455, 465, 280 N.W.2d 810 (1979). In common usage, a "witness fee" is a fee paid to a witness. Defendant has not cited, and we cannot find, any authority giving the term "witness fee" a technical meaning different from its common usage.

Two provisions of the Revised Judicature Act deal with fees paid to witnesses. M.C.L. Sec. 600.2552; M.S.A. Sec. 27A.2552 provides for certain sums payable to any witness as his witness fee. M.C.L. Sec. 600.2164; M.S.A. Sec. 27A.2164 provides, under certain conditions, for "a sum in excess of the ordinary witness fees provided by law" for expert witnesses. The fees provided for in both sections are "witness fees" according to the common usage of that term. A distinction between ordinary witness fees and expert witness fees is implicit in the language employed in M.C.L. Sec. 600.2164; M.S.A. Sec. 27A.2164, but no such distinction is drawn in M.C.L. Sec. 600.6449(1); M.S.A. Sec. 27A.6449(1)....