Courtney v. Apple, 49

• Decision Date: 01 October 1955
• Docket Number: No. 49,49
• Citation: 345 Mich. 223,76 N.W.2d 80
• Parties: . Edgar W. APPLE, Defendant and Appellant. ,
• Court: Michigan Supreme Court

Page 80

76 N.W.2d 80

345 Mich. 223

Edward John COURTNEY, Administrator of the Estate of John Martin Courtney, Deceased, Plaintiff and Appellee, v. Edgar W. APPLE, Defendant and Appellant.

No. 49, Oct. Term, 1955.

Supreme Court of Michigan.

April 2, 1956.

Walsh, Walsh, O'Sullivan, Stommel & Sharp, Port Huron, for defendant-appellant.

Albert E. Taylor, Port Huron, for plaintiff-appellee. W. Ralph Delaney, Detroit, of counsel.

Before the Entire Bench.

CARR, Justice.

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 two 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 pre-trial 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, ¹ 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 $700.00.

'(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 pre-trial 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 pre-trial 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 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. From 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 pre-trial 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, C.L.1948, § 619.582, 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. From 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, such 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, 11 N.W.2d 291. Such approval was in accord with prior decisions. In rajnowski v. Detroit, B. C. & A. Railroad Co., 74 Mich. 20, 41 N.W. 847, 849, it was said:

'The defendant 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, 87 N.W. 68, 70, the Court cited the prior decision in Hurst v. Detroit City Railway Co., 84 Mich. 539, 545, 48 N.W. 44, 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 Co., supra. See, also, Nelson...