Westfall v. Venton

• Decision Date: 15 November 1965
• Docket Number: No. 3,314,Nos. 313,s. 313,3
• Citation: 137 N.W.2d 757,1 Mich.App. 612
• Parties: Thomas S. WESTFALL, Administrator of the Estate of Hazel Westfall, Deceased, Plaintiff-Appellee, v. Ray Harlow VENTON, Defendant-Appellant. Thomas S. WESTFALL, Administrator of the Estate of Harper Westfall, Deceased, Plaintiff-Appellee, v. Ray Harlow VENTON, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 757

137 N.W.2d 757

1 Mich.App. 612

Thomas S. WESTFALL, Administrator of the Estate of Hazel

Westfall, Deceased, Plaintiff-Appellee, v. Ray Harlow VENTON, Defendant-Appellant.

Thomas S. WESTFALL, Administrator of the Estate of Harper

Westfall, Deceased, Plaintiff-Appellee, v. Ray Harlow VENTON, Defendant-Appellant.

Cal. Nos. 313, 314.

Court of Appeals of Michigan, Division No. 3.

Nov. 15, 1965.

Sherman H. Cone, Mitts, Smith & Haughey, Grand Rapids, for defendant-appellant.

MacLean, Seaman & Laing, Lansing, for plaintiff-appellee.

Before BURNS, P. J., and HOLBROOK and McGREGOR, JJ.

HOLBROOK, Judge.

On November 22, 1963, plaintiff filed separate suits against defendant in the circuit court for the county of Eaton, under the provisions of the wrongful death act, C.L.S.1961, § 600.2922 (Stat.Ann.1962 Rev. § 27A.2922), one action seeking recovery on behalf of the estate of Hazel Westfall, deceased, and the other action on behalf of the estate of Harper Westfall, deceased. Both actions sought damages as a result of a motor vehicle accident. Mrs. Westfall died as a result of injuries without regaining consciousness. Mr. Westfall also died, but survived for 7 1/2 days, part of the time suffering severe conscious pain. Plaintiff's claims on behalf of the estate of Hazel Westfall, limited the damages to loss of love, affection, and companionship on behalf of the decedent's six children during the remainder of Mrs. Westfall's life expectancy.

Plaintiff's claims on behalf of the estate of Harper Westfall, deceased, were for damages for funeral and burial expenses for Harper and Hazel Westfall, property damage to the automobile, medical and hospital expenses incurred by Harper Westfall and loss by Harper Westfall of his wife's services, affection and companionship during the 7 1/2 days which he survived her, and the loss of the love, affection and companionship. of Harper Westfall on behalf of the decedent's six children during the remainder of the life expectancy of said Harper Westfall.

The two cases were joined for trial by consent of all parties, and trial was had resulting in jury verdicts for the plaintiff in each case; $13,000 for the estate of Harper Westfall, including $3,462.70 for property loss, medical and hospital expense, and funeral and burial expenses; $5,000 for the estate of Hazel Westfall, deceased. Judgments were entered in accordance with the jury verdicts October 26, 1964. Defendant appeals.

The six children of Harper Westfall and Hazel Westfall were adults with established homes of their own and the evidence was to the effect that none of the children had received any support from either parent since the date of their respective marriages, and none of them had contributed to the support of their parents from said dates. This with the possible exception of one daughter who lived with her parents from January through May of 1959 during a nervous breakdown and divorce proceedings brought by her first husband.

The evidence shows that the adult children of the deceased had maintained a close relationship with their parents. They regularly visited them and were visited by them, and they received considerable spiritual advice and moral support from their parents. The family as a unit was usually together on holidays and the deceased parents took particular interest in the well-being of their children and grandchildren making gifts to them out of their limited resources and assisting with their religious education. A daughter testified that the loss of her parents left her with a feeling of loss of security and moral support. One son testified that he had gone on frequent hunting and fishing trips with his father and that they had started to construct a cabin together in northern Michigan. Prior to the death of Mr. and Mrs. Harper Westfall, the family was a well-knit, close unit.

Appellant raises two questions. (1) In an action for wrongful death, may the administrator recover damages for loss of love, affection and companionship of the deceased on behalf of adult children of the deceased where all are married, maintaining their own separate households, and receiving no support from the deceased? (2) Does instantaneous death give rise to an action for loss of consortium to a surviving spouse?

These actions may be brought, if at all, under C.L.S.1961, § 600.2922 (Stat.Ann.1962 Rev. § 27A.2922), which states in part as follows:

'(2) 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. 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. The amount recovered in every such action for pecuniary injury resulting from such death shall be distributed to the surviving spouse and next of kin who suffered such pecuniary injury and in proportion thereto. * * * After providing for the payment of the reasonable medical, hospital, funeral and burial expenses for which the estate is liable, the probate court shall determine as provided by law the manner in which the amount representing the total pecuniary loss suffered by the surviving spouse and the next of kin shall be distributed, and the proportionate share thereof to be distributed to the surviving spouse and the next of kin. The remainder of the proceeds of such judgment shall be distributed according to the intestate laws.' (Emphasis supplied.)

Until recently, the basis for recovery of damages for the death of a person over 21 years of age was either financial dependency, MacDonald v. Quimby (1957), 350 Mich. 21, 85 N.W.2d 157, or assumption by deceased of an obligation to support a surviving next-of-kin, Judis v. Borg-Warner Corporation (1954), 339 Mich. 313, 63 N.W.2d 647; Rytkonen v. City of Wakefield (1961), 364 Mich. 86, 111 N.W.2d 63; Mooney v. Hill (1962), 367 Mich. 138, 116 N.W.2d 231.

The dissenting opinion of Mr. Justice Talbot Smith in the case of Courtney v. Apple (1956), 345 Mich. 223, 76 N.W.2d 80, appears to be a harbinger of a new rule concerning what is included in 'pecuniary injury' under the death act.

The case of Wycko v. Gnodtke (1960), 361 Mich. 331, 105 N.W.2d 118, is a landmark case changing the rule concerning pecuniary injury or damage, wherein Mr. Justice Talbot Smith stated in part on pp. 338-340, 105 N.W.2d on pp. 122-123 as follows:

'What, then, is the pecuniary loss suffered because of the taking of the child's life? It is the pecuniary value of the life. * * * 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. * * * It is true, of course, that there will be uncertainties in all of these proofs, due to the nature of the case, but we are constrained to observe that it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created.'

Wycko v. Gnodtke, supra, involved the death of a minor child, however, the pertinent interpretation of the meaning of 'pecuniary injury' to include the value of a life is not specifically limited to a minor child.

Now, five years later, three cases, Currie v. Fiting (1965), 375 Mich. 440, 134 N.W.2d 611, Heider v. Michigan Sugar Company (1965), 375 Mich. 490, 134 N.W.2d 637, and Reisig v. Klusendorf (1965), 375 Mich. 519, 134 N.W.2d 634, shed further light on the meaning of 'pecuniary injury.'

The Currie Case allowed recovery for the wrongful death of an emancipated daughter living at home when not at school. The parents were not dependent upon the daughter, but suffered injuries attendant her unlawful death, including loss of companionship. Mr. Justice O'Hara in a concurring opinion stated on p. 456, 134 N.W.2d on p. 617 as follows:

"[T]hat the Wycko case overruled all of the prior cases and set up an entirely new standard for the determination of pecuniary loss in death cases' in order to include therein an element of recovery which had not previously been recognized in this State. The decision in that case, now part of our jurisprudence, has been presumptively known to the legislature at the very least since 1960.

'The sword of presumptive legislative notice of judicial decisions cuts both ways. If it is a valid concept in the maintenance of the status quo, as this Court held for many years when change was advocated, it must be equally valid when change becomes a judicial fait accompli. See generally, 50 Am.Jur., Statutes, § 326, p. 318; 21 C.J.S. Courts § 214, pp. 388-390 and Twork v. Munising Paper Co., 275 Mich. 174, 266 N.W. 311; In re Clayton's Estate, 343 Mich. 101, 72 N.W.2d 1; Consumers Power Co., v. County of Muskegon, 346 Mich. 243, 78 N.W.2d 223; Sheppard v. Michigan National Bank, 348 Mich. 577, 83 N.W.2d 614.

'If the legislature had found Wycko inconsonant with legislative intent, it has had ample opportunity to amend the act to declare explicitly and previsely what elements of damage are included or excluded from 'pecuniary loss."

In Reisig, the Supreme Court ruled that damages for the loss of an adult son were properly awarded in an action under the death act. Proof of support or reasonable expectation of continued support being...