Wycko v. Gnodtke, 12

Decision Date16 September 1960
Docket NumberNo. 12,12
Citation361 Mich. 331,105 N.W.2d 118
PartiesJohn E. WYCKO, Administrator of the Estate of John L. Wycko, deceased, Plaintiff-Appellant, v. Armand GNODTKE and Emil Gnodtke, Defendants-Appellees.
CourtMichigan Supreme Court

George S. Keller, Niles, Theron D. Childs, Jr., Three Oaks, for plaintiff and appellant.

Seymour & Seymour, Benton Harbor, for defendants and appellees.

Before the Entire Bench.

SMITH, Justice.

The case before us concerns, in general, damages for the life of a child negligently killed. Specifically it is whether or not a jury award of approximately $15,000 to the parents of a 14-year-old boy was excessive.

So far as the facts are concerned we will simply say that the deceased was walking, completely off a highway, with some other boy scouts. He was killed by an automobile owned by one defendant and driven by the other. The car suddenly ran onto the shoulder and hit 2 of the scouts. The plaintiff here is the administrator of the estate of one of them.

To substantiate the damage claims, testimony was introduced as to the boy's dependability, trustworthiness, and ambition. It was established that he helped his father and brothers work the family farm. Upon such evidence the jury awarded $14,000, plus $979.50 for funeral and burial expenses. The trial judge said it was too much. He said that the proofs justified an award of only $7,500, plus $979.50 for funeral and burial expenses, since no boy his age 'could have had the earning capacity indicated by this verdict,' and he ordered a new trial unless remittitur were filed.

Thus we come once more to a consideration of the problem of the 'pecuniary loss' suffered by the parents of a deceased minor child. What we in Michigan have done, in common with many other courts, is to require the subtraction, from the hypothetical earnings of the child prior to his majority, the speculative costs of his rearing. 1 The difference, if any, we say is the parents' pecuniary loss. We have commented, in a prior dissenting opinion, 2 upon the unreal nature of the computation we of the courts (for nothing in the act so requires) have thus imposed upon the bereaved parents. In the present case, however, not only is the measure of damages once more under attack, but also its application by the trial court.

Lord Campbell's act 3 was the predecessor of the American wrongful death acts. It did not contain the words 'pecuniary loss.' It provided simply that 'in every such action [for wrongful death] the jury may give such damages as they may think proportioned to the injury resulting from such death.' 4 It was the leading case of Blake v. The Midland Ry. Company 5 that interpreted this provision to limit the award of damages to the probable pecuniary loss to the beneficiaries, which limition has been followed in some of the American statutes, including that of Michigan. We agree with Tiffany, however, that: 'In spite of these differences in phraseology * * * the principles applicable to the measure of damages under all these acts is generally the same, viz., that the damages are measured by the pecuniary loss resulting to the beneficiaries of the action from the death.' 6 We have, accordingly considered cases from other jurisdictions in our analysis without differentiating according to the precise statutory wording employed. 7

The interpretation of the requirement of pecuniary loss found in the early cases, which even today are followed as precedent, reflected the moral and legal stadards of their times. In Bramall v. Lees, 8 the court considered the case of a 12-year-old girl, 9 negligently killed. Despite the fact that she had attained such age she remained, nevertheless, 'living at home' and hence was 'peculiarly then a burden to [her] parents.' The father, however, succeeded in securing a verdict for 15 pounds. His theory was that in the course of a year or two the child would have gone into a factory 'and taken back money as its earnings for the parents.' A year or two in the future, however, was held 'not sufficient to found an action.' A rule nisi for a new trial was granted by the Exchequer Court. We find no further report. Apparently the case was settled on some such basis as the bar of our State so well knows in these child death cases. More fortunate was the father in Duckworth v. Johnson. 10 Here a verdict for 20 pounds was obtained 'by reason of the son, a boy fourteen years of age, having been killed by the falling of a wall in consequence of the defendant's negligence.' The father, unlike Mr. Bramall, was able to show that his son had been working for two years and a half. Chief Baron Pollock, after expressing the warning that this act was not intended 'to enable persons to sue in respect of some imaginary damage' thought that the jury's determination of the 'value of the boy's services, and the cost of boarding and clothing him' should not be disturbed, and the rule nisi to enter verdict for the defendant was discharged.

The judges so ruling we do not condemn. They 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, 11 and of the public folgging 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 12 that at Colchester and in the Tauton clothing region "there was not a child or in the villages round it of above five years old, but, if it was not neglected by its parents and untaught, could earn its bread." Halevy writes that the 'number of children employed in factories was so great in proportion to the adults that it was out of the question to restrict the working hours of children without restricting at the same time the hours of adults.' 13 The apprenticeship of children to factory owners amounted to what Professor Trevelyan, Master of Trinity College, Cambridge, has described as 'a slave traffic.' 14 'The atrocities visited upon these boys and girls' it is reported in the Encyclopaedia of the Social Sciences, 15 'literally driven to death in the mills, form one of the darkest chapters in the history of childhood.' Age limits were set in an effort to control the traffic. In 1816 the apprenticeship of parish children under the age of nine was forbidden, 16 but the underground employment of children under ten was not forbidden until 1843, 17 just five years before the passage of the progenitor of our statute. It is only against this somber background that we can fully under the significance of the comment made in the Bramall Case, supra, that the girl was 'living at home and getting nothing.' At the age of twelve she was already long overdue at the mill.

This, then, was the day from which our precedents come, a day when employment of children of tender years was the accepted practice and ther pecuniary contributions to the family both substantial and provable. It is not surprising that the courts of such a society should have read into the statutory words 'such damages as they [the jury] may think proportional to the injury resulting from such death' not only the requirement of a pecuniary loss, but, moreover, a pecuniary loss established by a wage benefit-less-costs measure of damages. Other losses were unreal and intangible and at this time in our legal history the courts would have no truck with what Chief Baron Pollock termed in Duckworth, supra, 'imaginary losses.' Loss meant only money loss, and money loss from the death of a child meant only his lost wages. All else was imaginary. The only reality was the King's shilling.

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. 18 In fact, our society, by one means or another, now attempts to keep children out of the general labor market. Yet there still exists in the law this remote and repulsive backwash of time and civilization, untouched by the onward march of society, where precedents we alone honor tell us that the value of the life a child must be measured solely by the standards of the day when he peddled the skill of his hands and the strength of his back at the factory gates. We are not unaware of the argument in support of the proposition that legislative silence, subsequent to decisions interpreting a statute, must be construed as legislative acquiescence in the interpretation made. Our thoughts thereon will be found in our concurring opinion in Sheppard v. Michigan National Bank. 19 We there expressed the view, with appropriate citation of authority, that a legislature legislates by legislating, not by doing nothing, not by keeping...

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