Smith v. City of Detroit

• Decision Date: 29 November 1972
• Docket Number: Nos. 7,8,s. 7
• Citation: 202 N.W.2d 300,388 Mich. 637
• Parties: Brunson SMITH, as Special Guardian of the Estate of Gary Smith, Deceased, Plaintiff-Appellant, v. The CITY OF DETROIT, a Michigan municipal corporation, Defendant-Appellee. Arlen SWARTHOUT, Administrator of the Estate of Leonard F. Clark, Deceased, Plaintiff-Appellant and Cross-Appellee, v. Leland BEARD, d/b/a Beard's Welding & Erection Company, Defendant, and Lewis J. Sarvis, d/b/a Lewis J. Sarvis, Architect, Defendant-Appellee, and Cross-Appellant.
• Court: Michigan Supreme Court

Page 300

202 N.W.2d 300

388 Mich. 637

Brunson SMITH, as Special Guardian of the Estate of Gary

Smith, Deceased, Plaintiff-Appellant, v. The CITY OF DETROIT, a Michigan municipal corporation,

Defendant-Appellee.

Arlen SWARTHOUT, Administrator of the Estate of Leonard F.

Clark, Deceased, Plaintiff-Appellant and Cross-Appellee, v. Leland BEARD, d/b/a Beard's Welding & Erection Company, Defendant, and Lewis J. Sarvis, d/b/a Lewis J. Sarvis, Architect,

Defendant-Appellee, and Cross-Appellant.

Nos. 7, 8.

Supreme Court of Michigan.

Nov. 29, 1972.

Law Offices of Leonard C. Jaques, P.C., Detroit, for plaintiff-appellant by Leonard C. Jaques, Jerome G. Quinn, Detroit, of counsel, for plaintiff-appellant.

Michael M. Glusac, Corp. Counsel, John F. Hathaway, Maureen P. Reilly, Asst. Corp. Counsels, Detroit, for City of Detroit.

van Benschoten & van Benschoten, P.C., Saginaw, for plaintiff-appellant and cross-appellee, by Harvey E. van Benschoten, Saginaw.

Early, Starbuck & Lennon, Kalamazoo, by Charles E. Starbuck, Kalamazoo, for appellee-cross-appellant; Carl H. Reynolds, Lansing, of counsel.

Before the Entire Bench.

SWAINSON, Justice.

Both of these cases involve the issue of the validity of the Breckon decision ¹ in wrongful death actions. They have been consolidated for purpose of this opinion because they involve basically the same issues.

SMITH v. CITY OF DETROIT

On April 28, 1968, nine-year-old Gary Smith was killed when he fell off a playground apparatus in an upside down position, the apparatus then rolled on top of his head crushing his skull. On February 26, 1970, plaintiff commenced an action under the wrongful death act ² against the City of Detroit contending that the City was negligent and grossly negligent in the maintenance of the toys at the City's playground where the accident occurred and further that the toys constituted a nuisance. Plaintiff moved that the trial, which was scheduled for March, 1972, be adjourned until after April 1, 1972 so that plaintiff could prove damages under 1971 P.A. 65 which specifically permits the recovery of pecuniary damages for loss of society and companionship in wrongful death actions. The trial court granted this motion and trial was set for May 15, 1972. Prior to the commencement of the trial, defendant moved In limine to preclude plaintiff from proving damages provided by that amendment and sought to limit proof of damages to only items permitted under Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970). Under Breckon, pecuniary damages for loss of society and companionship were not recognized. The trial court granted defendant's motion to limit proofs and also denied plaintiff's motion for a stay of proceedings pending appeal. Plaintiff thereupon filed an application for leave to appeal and a motion for stay of proceedings in the Court of Appeals. These motions were granted by the Court of Appeals on May 19, 1972. On June 1, 1972, plaintiff filed application for leave to appeal with our Court prior to disposition by the Court of Appeals. We granted leave to appeal. 387 Mich. 791.

SWARTHOUT v. BEARD

Plaintiff's decedent, Leonard Clark, was killed on July 29, 1963 when an excavation caved in on him. He was working in the excavation as an employee of Nordstrom-Myers, Inc., the general contractor putting in footings for the library building at Alma College. Plaintiff's administrator filed a complaint alleging wrongful death ³ on November 4, 1963. An amended complaint was filed on January 28, 1966 charging negligence against Leland Beard, d/b/a Beard's Welding and Erection Company, the excavator, and Lewis J. Sarvis, the architect, as original defendants. Nordstrom-Myers, Inc. was subsequently impleaded as a third party defendant. The trial court dismissed the action against Nordstrom-Myers without prejudice on the theory of workmen's compensation immunity. A jury trial resulted in a verdict of no cause of action against defendant Beard. A verdict of $25,000 was returned against the architect, Lewis J. Sarvis. The Court of Appeals affirmed the trial court as to the finding of liability as against the defendant Sarvis, but remanded for a new trial to determine damages in light of Breckon. 33 Mich.App. 395, 190 N.W.2d 373. We granted leave to appeal. 387 Mich. 770.

Several issues are raised by the parties on this appeal. Two issues are common to both cases.

I. Whether pecuniary damages for loss of companionship was a proper element of damages under the wrongful death act before the 1971 amendment?

II. Whether the 1971 amendment to the death act is retroactive?

In the Smith case the City filed a cross-appeal and raised the following issue:

III. Whether the governmental immunity statute of 1970 ⁴ should be applied retrospectively?

In the Swarthout case plaintiff raised the following issues on appeal:

IV. Whether the question of interest from the date of death to the date of the verdict should have been submitted to the jury?

V. Whether the question of damages for conscious pain and suffering should have been submitted to the jury?

Defendant in the Swarthout case raises the following issues on appeal:

VI. Whether the architect had the duty to supervise the manner in which the general contractor and/or the excavating subcontractor made the excavation?

VII. Whether architect had a duty to protect the workmen of the general contractor working in the excavation and stop the work?

VIII. Whether the trial court erred in denying defendant's motion to dismiss at the close of plaintiff's proofs since no evidence of the professional standards violated was submitted by the plaintiff?

The issue of loss of companionship as an element of damages has been before this Court on numerous occasions in recent years. ⁵ In Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960), our Court upheld a jury award of $14,000 under the wrongful death act for the death of a 14-year-old boy. The Court, in the course of its opinion, overruled the measure of damages as formulated by the Court in Courtney v. Apple, 345 Mich. 223, 76 N.W.2d 80 (1956). The Court in Courtney had stated (p. 232, 76 N.W.2d p. 84):

'The foregoing cases and others of life 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.'

The Court in Wycko traced the history of the wrongful death act in its interpretation in Courtney back to Lord Campbell's act. ⁶ Justice Smith pointed out concerning the measure of damages (p. 335 of 361 Mich., p. 120 of 105 N.W.2d):

'They (the judges) were merely interpreting the statute in accordance with the social conditions of the day, which, presumably, the legislative body had in mind in the enactment of the legislation then under consideration. The rulings reflect the philosophy of the times, its ideals, and its social conditions. It was the generation of the debtor's prisons, of some 200 or more capital offenses, and of the public flogging of women. It was an era when ample work could be found for the agile bodies and nimble fingers of small children. Defoe's England was not long past. He noticed with approval that at Colchester and in the Tauton clothing region "there was not a child or in the villages round it of above 5 years old, but, if it was not neglected by its parents and untaught, could earn its bread."'

Thus, it was not surprising that in that era courts required that pecuniary loss be established by a wage benefit less costs as a measure of damages. However, Justice Smith continued (pp. 337--338, 105 N.W.2d p. 121):

'That this barbarous concept of the pecuniary loss to a parent from the death of his child should control our decisions today is a reproach to justice. We are still turning, actually, for guidance in decision, to 'one of the darkest chapters in the history of childhood.' Yet in other areas of the law the legal and social standards of 1846 are as dead as the coachman and his postilions who guided the coaches of its society through the dark and muddy streets, past the gibbets where still hung the toll of the day's executions. In most areas the development of the law has paralleled the enlightened conscience of our people. Examples abound. We no longer tolerate the intentional infliction of mental suffering. Illness from such cause is not, we now recognize, imaginary. A right to privacy is recognized, haltingly, it is true, but a start has been made. The exploitation of children by avaricious parents and guardians is no longer permitted, much less condoned. A combination of influences, all arising from the public condemnation of child labor, has resulted in almost universal state child-labor and compulsory school attendance laws. In fact, our society, by one means or another, now attempts to keep children out of the general labor market.

'It follows from the foregoing that we now reject, as prayed by appellant, the child-labor measure of the pecuniary loss suffered through the death of a minor child, namely, his probable wages less the cost of his keep, in all cases consistent therewith we now overrule.'

The Court then went on to state that loss of companionship was an element of damages under the wrongful death act. 361 Mich. 339--340, 105 N.W.2d 118.

In Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970), a majority of the Court held that Wycko should be limited to its facts and that loss of companionship was not an element of damages. The legislature by 1971 P.A. 65, effective March 30, 1972, amended the wrongful death act and permitted recovery for loss of society and companionship. ⁷

Thus, our decision and its application is limited to cases commenced before March...