Wycko v. Gnodtke

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 tbe 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 re-mittitur 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 3upon 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 act3 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. Midland R. Co. (1852)5 that interpreted this provision to limit the award of damages to the probable pecuniary loss to the beneficiaries, which limitation 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, vis., that the damages are measured by the yecuniary loss resulting to the beneficiaries of the action from the death.”6We have, accordingly, considered cases from other jurisdictions in our analysis without differentiating according to the precise statutory wording employed.77

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 standards of their times. In Bramall v. Lees,8the 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.10Here a verdict for 20 pounds was obtained “by reason of the son, a boy 14 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 2-1/2 years. 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 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 approval12 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.’ ” Halevy writes that the “number of children employed in factories was so great in proportion to the adnlts 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 9 was forbidden,16 but the underground employment of children under 10 was not forbidden until 1843,17 just 5 years before the passage of the progenitor of our statute. It is only against this somber background that we can fully understand 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 12 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 their 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 of 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.19We there expressed the view, with appropriate citation of authority, that a legislature legislates by legislating, not by doing nothing, not by keeping silent.

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, and all cases consistent therewith we now overrule.

What, then, is the pecuniary loss suffered because of the taking of the child’s life? It is the pecuniary value of the life. We are aware, of course, that there are those who say that the life of a human being is. impossible to value, that although we will grapple mightily with the value of the life of a horse,20 of a team of mules,21 we will stand aloof where a human is concerned and assign it no value whatever.22 This kind of delicacy would prevent the distribution of food to the starving because the sight of hunger is so sickening. But we cannot shirk this difficult problem of valuation. In the cases coming to us a life has been taken and it is our duty, as best we can, to put a fair valuation on it. In so doing, we will keep in mind that the act 23 is remedial in its character and our duty is to construe it liberally in favor of the beneficiaries.24

The pecuniary value of a human life is a compound of many elements. The use of material analogies may be helpful and inoffensive. Just as with respect to a manufacturing plant, or industrial machine, value involves the costs of acquisition emplacement, upkeep, maintenance service, repair, and renovation, so, in our context, we must consider the expenses of .birth, of food, of clothing, of medicines, of instruction, of nurture and shelter.25 Moreover, just as an item of machinery forming part of a functioning industrial plant has a value over and above that of a similar item in a showroom, awaiting purchase, so an individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship.26 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. We are, it will be noted, restricting the losses to pecuniary losses, the actual money value of the life of the child, not the sorrow and anguish caused by its death. This is not because these are not suffered and not because they are unreal. The genius of the common law is capable, were it left alone, of ascertaining such damages, but the legislative act creating the remedy forbids. Food, shelter, clothing, and companionship, however, obtainable on the open market, have an ascertainable money value. Finally if, in some unusual situation, there is in truth, or reasonably forthcoming, a wage-profit capability in the infant (an expectation of an excess of wages over keep, the measure heretofore employed) the loss of such expectation should not be disregarded as one of the pecuniary losses suffered.27 In such case, however, the assessment is made as a matter of fact and not of fiction. 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.

The jury heard the testimony and was charged by the court on what we have here termed the child-labor measure of damages. As a result of its deliberations its award was for $14,000, plus funeral and burial •expenses. This the trial judge set aside as excessive. He said that no child this age had a $14,000 earning •capacity, but only one of $7,500, and ordered re-mittitur. This was error. The jury’s award is not to be set aside unless so gross as to carry its own •obvious proofs of prejudice. But an award of $14,000 is not so patently oppressive as to meet this test, judged by modern standards, not only in our •own jurisdiction,28 but elsewhere.29

Error, then, there was. But the error into which the court was betrayed was the direct and natural result of this Court’s insistence upon the continued employment of the child-labor standard of pecuniary loss. Whatever the situation may have been in .1846, as the children brought home their wages from plant, mine, and mill, today their gainful employment is an arrant fiction and we know it. The trial judge may have been on sound ground as a matter of •economics in saying that he didn’t think the deceased •child had a $14,000 earning capacity. But we are not dealing in economics. We are dealing with a fiction, the fiction that under today’s conditions, not those of 1846, the minor child is a breadwinner. He is not. He is an expense. A blessed expense, it is true, but nevertheless an expense. We permit the use of the fiction that he is a wage-earner solely in an effort to accomplish a semblance of justice. If, indeed, this is our purpose, as it is, the fiction must be .allowed to operate in both directions. We cannot uphold a jury verdict for zero dollars and zero cents pecuniary loss on the theory that the jury, after all, made its computations and they evenly balanced,30 yet upset a $14,000 verdict on the ground that the computations made were not real after all, that we know better. If a fiction is to be employed it must not operate solely on a one-way track, to be respected if no recovery results from its employment, but exposed for the fiction it is, and thus rejected, if an award substantial, though still within the bounds of reason, is made. ■

The fiction now employed as the measure of pecuniary loss should be' abandoned. It perpetuates an attitude towards the value of a child’s life completely repudiated by modern legislation and the enlightened child-welfare policies of this jurisdiction. It does-violence to the intent of the act, which is to grant a recovery whenever a death “of a person” is caused by the wrongful act of another. The child is a person and is not to be read out of the act by judiciál acquiescence in the chief baron’s theory that his life-has no pecuniary value save as that of a wage-earner.' The bloodless bookkeeping imposed upon our juries-by the savage exploitations of the last century must, no longer be perpetuated by our courts.

The order, granting new trial subject to remittitur is reversed and the case remanded for entry of judgment upon the verdict of the jury. Costs to appellant.