Thompson v. Ogemaw County Bd. of Road Com'rs

• Decision Date: 13 October 1959
• Docket Number: No. 44,44
• Citation: 357 Mich. 482,98 N.W.2d 620
• Parties: John L. THOMPSON, Special Administrator for the Estate of Elda L. Thompson, Deceased, Plaintiff and Appellant, v. OGEMAW COUNTY BOARD OF ROAD COMMISSIONERS, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 620

98 N.W.2d 620

357 Mich. 482

John L. THOMPSON, Special Administrator for the Estate of Elda L. Thompson, Deceased, Plaintiff and Appellant, v. OGEMAW COUNTY BOARD OF ROAD COMMISSIONERS, Defendant and Appellee.

No. 44.

Supreme Court of Michigan.

Oct. 13, 1959.

Peter F. Cicinelli, Saginaw, Van Benschoten & Van Benschoten, Saginaw, for appellant.

Smith & Brooker, by Carl H. Smith, Sr., Bay City, Randall B. Clemence, West Branch, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

This is a suit under the wrongful death act brought by a father acting as special administrator of the estate of his deceased 15-year-old daughter.

The declaration alleged that the girl's death was caused by the negligence of the defendant Ogemaw county board of road commissioners in failing to keep a county road reasonably fit and safe for travel, in violation of its statutory duty. See C.L.S.1956, § 242.1 (Stat.Ann.1958 Rev. § 9.591).

Evidence at the trial showed the existence of a large hole in the west half of Damon road, in Ogemaw county, south of the crest of Darling hill, that the hole had been there for some months prior to the date in question, and that defendant had actual knowledge of its existence.

Plaintiff's daughter was a passenger in an automobile traveling south on Damon road on the night of November 6, 1953. The car she was in struck the hole referred to, went out of control and swerved into the left-hand lane where it collided head-on with an automobile being driven in the opposite direction. Plaintiff's daughter and three other persons in the car were killed.

The case was tried before an Ogemaw county jury which brought in a verdict of $12,072 in favor of plaintiff.

Subsequent to verdict, defendant-appellee sought and obtained a new trial on the ground that the judge incorrectly charged the jury on the issue of damages by allowing the jury to consider loss of possible contributions, due to parental dependency, which the minor child might otherwise have made subsequent to her 21st birthday.

On appeal, the issue is presented to us thus 'In the event of the wrongful death of a minor, may the jury consider and award damages for 'pecuniary injuries' suffered by the surviving parents after the period of the child's minority?'

The testimony pertaining to pecuniary damages upon which the jury apparently based its award may be summarized under three headings:

1) Funeral expenses of $800.27--stipulated.

2) Loss of services. This item was estimated by plaintiff at $10,000 when asked for a bill of particulars pertaining to his $25,000 damage clause. The testimony presented in relation to the daughter's services included the following:

At the time of death, decedent was 15 years old. She was an intelligent, healthy, girl, completing her high school requirements. She earned money as a babysitter and contributed to her parents, on an average, $5 to $5.50 per week. Decedent's father suffered from heart trouble, arthritis and hardening of the arteries, sufficiently incapacitating him so that he had been unemployed since 1948. The principal source of family income was derived from earnings of decedent's mother, a cook in a restaurant. In order for the mother to retain this employment, the daughter performed cooking, washing and general housework for the family to the extent of four to six hours of work each day.

3) Loss of prospective contributions beyond the age of 21.

In addition to the facts recited above, decedent's father testified:

'Q. Mr. Thompson, do you know what was planned for your daughter after she would graduate from high school? A. She was going to take mother's place and let mother come home.

'Q. You mean she was going to work in the restaurant? A. Yes.

* * *

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'Q. Is that the present job that your wife holds? A. Yes, sir.

'Q. Was Elda agreeable to that plan, sir? A. Yes, her and her mother used to talk about it. She used to tell her mother she could cook just as good as she could.

'Q. Then your wife, what was she going to do at that time? A. She was supposed to come home.

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'Q. * * * At the time of the death of your daughter, Mr. Thompson, were you in need of her help both services and contributions? A. Yes.

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'Q. Now, Mr. Thompson, in your opinion, under the family circumstances as you have described them here, would you have been in need of your daughter's services and money contributions even after she reached the age of 21 years if she had lived?

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* * *

'A. Yes.'

The court's charge on the issue of damages concerned three elements: 1) Funeral expenses; 2) The loss of services of the deceased during her minority, and; 3) The loss of her future contributions after the 21st birthday.

This appeal pertains to the claimed invalidity of the charge regarding this third element. The trial judge's words follow:

'Now so far as damages that you may find after she would have reached the age of 21 years, they would be computed and allowed for such period of time as you may find a condition of dependency on the part of the parents to exist, taking into consideration the fact that she might be relieved of such dependency by inability after age 21 through her own death, sickness or otherwise to contribute to her parents and taking into consideration the fact that such dependency would cease in any event at such time as you may determine from the age, condition of health and life expectancy of her parents that they or the surviving survivor of them would die. Again I caution you that it is the present worth of these various amounts, as I have explained it to you, that it is essential to find.'

The trial judge's charge also defined pecuniary injury:

'Pecuniary loss means the money loss, the money injury caused by such death. Now in that connection I might also say that the law does not provide for any damages for sentimental reasons. It uses the word 'pecuniary' which distinguishes it from those other matters which are matters of sentiment, of love and affection and of companionship, and those sort of things which are always present when anyone dies, but the law refers to pecuniary injury.'

The question presented by this appeal requires interpretation of the meaning of the Michigan wrongful death act. C.L.1948, §§ 691.581, 691.582 (Stat.Ann.1957 Cum.Supp. §§ 27.711, 27.712. ¹ The controlling statutory language in relation to this case is, '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.'

The trial judge in granting defendant's motion for new trial held that he had erred in his jury instruction by allowing consideration of possible future contributions to her parents by this minor after the age of 21.

The statute and Michigan case law interpreting it allow consideration of loss of services of a minor in determining pecuniary injury of a parent. Black v. Michigan Central Railroad Co., 146 Mich. 568, 109 N.W. 1052; Sceba v. Manistee Railway Co., 189 Mich. 308, 155 N.W. 414, L.R.A.1918C, 1090; Morris v. Radley, 306 Mich. 689, 11 N.W.2d 291; Rajnowski, Administratrix v. Detroit, Bay City & Alpena Railroad Company, 74 Mich. 20, 41 N.W. 847; Hurst, Administrator v. Detroit City Railway Co., 84 Mich. 539, 48 N.W. 44.

There is, however, a clear distinction between the services of a minor and the contributions of an adult son or daughter to a dependent parent. Such contributions are more than a moral obligation. Under proper circumstances an adult son or daughter may be ordered to contribute such support. C.L.1948 and C.L.S.1956, § 401.1 et seq. (Stat.Ann.1950 Rev. and 1957 Cum.Supp. § 16.121 et seq.).

The pecuniary value of such obligation, voluntarily assumed, has been recognized in Michigan case law. In the case of a dependent parent, proofs that a son 23 years of age had voluntarily undertaken and continued support were held to allow the jury to consider whether or not there was reasonable expectation of continued support in determining damages arising from the son's death. Judis v. Borg-Warner Corporation (Norge Division), 339 Mich. 313, 63 N.W.2d 647. See, also, MacDonald v. Quimby, 350 Mich. 21, 85 N.W.2d 157.

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 Consol. Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846; Bohrman v. Pennsylvania R. Co., 23 N.J.Super. 399, 93 A.2d 190; Foerster v. Direito, 75 Cal.App.2d 323, 170 P.2d 986. See, also, Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244; Annotation, 14 A.L.R.2d 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. C.L.1948, § 691.581 et seq. (Stat.Ann.1957 Cum.Supp. § 27.711 et seq.). The language of the Judis and MacDonald cases suggest that the test is reasonable expectation of support rather than any particular age at the time of death.

We note that the trial judge felt that the language contained in Covell v. Colburn, 308 Mich. 240, 13 N.W.2d 275, required him to grant the motion for new trial. Although we read the facts therein as quite different from these, to the extent that the Covell case suggests a different conclusion, it is overruled.

While this decides the basic legal question presented in this appeal some comment may be desirable in this case upon the most difficult of all questions involved in wrongful death cases--how definite must the evidence bearing upon pecuniary injury be to support a jury award?

It must be recognized at this point that some uncertainty of proof is implicit in the terms of the statute we seek to interpret. The...