Opinion
Docket No. 77-1149.
Decided May 8, 1978. Leave to appeal applied for.
Lopatin, Miller, Bindes, Freedman Bluestone (by Michael Gagleard), for plaintiff.
Joselyn, Rowe, Jamieson Grinnan, P.C., for defendant Michigan Mutual Liability Company.
Dice, Sweeney, Sullivan Feikens, P.C., for defendants The Detroit Edison Company, Parson Company, and Marley Corporation.
Amici Curiae:
Foster, Swift, Collins Coey, P.C. (by David W. McKeague), for American Mutual Insurance Alliance.
Before: BASHARA, P.J., and BEASLEY and D.E. HOLBROOK, JR., JJ.
In a wrongful death action plaintiff brings this interlocutory appeal to obtain review of a trial court order denying her motion in limine for a protective order. That motion sought to preclude defendant from referring to or introducing evidence at trial of plaintiff's remarriage. The trial court concluded that so long as the plaintiff persisted in claiming damages for loss of the decedent's society and companionship, the evidence of her remarriage was relevant and admissible.
Defendants urge that determinations of evidential relevancy are within the discretion of the trial court and should be sustained unless there is an abuse of that discretion. Further, the defendants argue, without expository analysis, that remarriage is relevant to ascertaining the extent of damages arising from a loss of decedent's society and companionship. Supportive authority is garnered by defendants from the amendatory language of 1971 PA 65, § 1 and this Court's recent decision in Bradfield v Estate of Burgess, 62 Mich. App. 345; 233 N.W.2d 541, lv den, 395 Mich. 803 (1975).
To gain some appreciation for the effect of this amendment to the wrongful death act, MCL 600.2922; MSA 27A.2922, a brief review of the evolution of recovery for loss of society and companionship and the related evidentiary question of a plaintiff-spouse's remarriage is warranted.
Initially, recovery for wrongful death, in statutory terms, was comprised of "such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death * * *". MCL 600.2922(2); MSA 27A.2922(2). Pecuniary injury was construed in Wycko v Gnodtke, 361 Mich. 331; 105 N.W.2d 118 (1960), to include the element of the decedent's society and companionship.
Five years later the Supreme Court decided Bunda v Hardwick, 376 Mich. 640; 138 N.W.2d 305 (1965). Notable for the thoroughness of its analysis and comprehensive reconciliation of prior contrary pronouncements, the Bunda Court concluded that evidence of a spouse's remarriage is inadmissible in wrongful death actions.
Following another half-decade, the Supreme Court decided Breckon v Franklin Fuel Co, 383 Mich. 251; 174 N.W.2d 836 (1970). Addressing specifically the Wycko decision, the Court concluded that any assertions therein tending to permit recovery for loss of society and companionship, were mere dicta. Id. at 275; 174 N.W.2d at 845. The Court went on to hold that, since the term "pecuniary injury" was explicit and did not contemplate loss of society and companionship as an element of recovery, such damages could not be obtained in a wrongful death action. Id. at 277-278; 174 N.W.2d at 845-846. However, the decision in Bunda, as to the admissibility of a plaintiff-spouse's remarriage, was not evaluated by the Court.
In the ensuing year the Legislature enacted 1971 PA 65, § 1, which became effective in 1972. It changed the first sentence of MCL 600.2922(2); MSA 27A.2922(2), from:
"(2) Persons entitled to sue; damages, distribution. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and 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." (Emphasis added.) to read 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, under all of the circumstances to those persons who may be entitled to such damages when recovered including 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." (Emphasis added.)
Additionally, the amendment added the following express provision:
"The amount of damages recoverable by civil action for death caused by the wrongful act, neglect or fault of another may also include recovery for the loss of the society and companionship of the deceased."
Defendants predicate admissibility pursuant to the revised statute on the language "under all the circumstances."
This decision merely reiterated the holding in Thompson v Peters, 26 Mich. App. 590; 182 N.W.2d 763 (1970), rev'd on other grounds, 386 Mich. 532; 194 N.W.2d 301 (1972). Thompson held that evidence of the plaintiff-spouse's remarriage was inadmissible, but added the proviso "absent a proper showing of its relevancy and materiality to some issue or issues in the case". Id. at 598; 182 N.W.2d 767. Apparently, in the instant case, defendants rely upon the implication of the proviso to reason that such evidence is relevant to damages for loss of society and companionship.
Plaintiff contends that evidence of remarriage is absolutely inadmissible, citing and relying upon the bases articulated in Bunda v Hardwick, 376 Mich. 640; 138 N.W.2d 305 (1965). More particularly, plaintiff maintains, in conformity with Bunda, that such evidence is precluded by the collateral source doctrine, constitutes an irrelevant subsequent event because all damages accrue at the date of decedent's death, and lacks a rational foundation for admissibility.
The resolution of this controversy is not yielded definitively from an examination of prior case precedent. However, the Bunda rationale is most persuasive in its analysis, and we adopt its foundational principles to conclude that evidence of a plaintiff-spouse's remarriage is inadmissible in a wrongful death action on the issue of damages for loss of the decedent's society and companionship.
Bunda v Hardwick, 376 Mich. 640; 138 N.W.2d 305 (1965), was decided long before the statutory amendments applicable to the case under review. Similarily, Bradfield v Estate of Burgess, 62 Mich. App. 345; 233 N.W.2d 541, lv den, 395 Mich. 803 (1975), involved a cause of action accruing before the amendment with which we are here concerned. Another case decided by this Court, Hollis v Abraham, 67 Mich. App. 426, 241 N.W.2d 231 (1975), reached the same conclusion as Bunda and Bradfield, but made the rule of inadmissibility applicable in dramshop actions.
A litany of authority from other jurisdictions indicates that a rule of inadmissibility has attained almost universal acceptance. See Annotation, 87 ALR2d 252 (1963), and supplements thereto. Further, that exhaustive account dispels the defendants' assertion that a recent trend signifies a movement toward admissibility of such evidence.
Indeed, our research has disclosed only two American jurisdictions opting for a rule of admissibility. See Campbell v Schmidt, 195 So.2d 87 (Miss, 1967), and Jensen v Heritage Mutual Ins Co, 23 Wis.2d 344; 127 N.W.2d 228 (1964). Neither case is comparable in the comprehensiveness of its analysis to the decision of our Supreme Court in Bunda v Hardwick, 376 Mich. 640; 138 N.W.2d 305 (1965). Nor can the existence of two cases of relatively early vintage be deemed to signify a trend in American jurisprudence.
We are, furthermore, unpersuaded by defendants' interpretation of the amendatory language "under all of the circumstances * * * " as being indicative of a legislative intent that evidence of remarriage be admissible. Given the posture of decisional law at the time of the 1971 amendment, an opposite conclusion is more tenable.
At that time the Supreme Court had rejected loss of society and companionship as a compensable injury; yet the rule of inadmissibility as to a surviving spouse's remarriage was extant. The Legislature expressly altered the former holding, but gave no explicit indication of its position on the latter. If the Legislature intended a change in this evidentiary rule, it would not have so obliquely accomplished such result. Our conclusion is that a diametric legislative intent is exceedingly more plausible.
Any remaining doubt as to the merit of a rule of inadmissibility of a surviving spouse's remarriage is extinguished upon consideration of the nature of the loss for which we seek to provide recompense. If there be any disconcerting foible in the character of American jurisprudence, it is that such personal losses as the society and companionship of a deceased family member are relegated to compensability in terms of currency. Yet it appears that no alternative is available.
The myriad of facets that comprise an emotional relationship between persons defies specification. To compensate the survivor of such relationship for its termination by the negligence of another must, perhaps of necessity, devolve upon the intuitive notion of the trier of fact. Permitting the introduction of evidence that another relationship was formed to mitigate such damages would place an imponderable burden upon the evaluation process, making the task beyond the capability of the fact-finder. Further, such a rule is necessarily premised upon the assumption that human beings are interchangeable, a type of fungible commodity. This premise is offensive to our conception of human individuality.
We, therefore, conclude that the trial court erroneously denied plaintiff's motion for a protective order. This case is remanded for trial with instructions that the plaintiff be granted a protective order to preclude introduction of evidence of her remarriage.
Reversed and remanded. Costs to plaintiff.