CRYSTAL v. HUBBARD

RYAN, J.

We are required in this case to address the difficult question whether, in a wrongful death action, the deceased's siblings may recover damages for loss of the society and companionship of their sister.

We hold that they may.

Jackie Lynn Hubbard died when the automobile driven by her husband, defendant Steven Hubbard, in which she was riding, collided with another operated by defendant Steven T. Komar. Ms. Hubbard's father was named administrator of her estate, and he filed this action under the wrongful death provisions of MCL 600.2922; MSA 27A.2922. His complaint sought damages for funeral and burial expenses, for Ms. Hubbard's pain and suffering preceding her death, and for the personal losses of society and companionship sustained by Ms. Hubbard's five surviving brothers and sisters, her father and her mother.

The defendants admitted liability, and the case was tried to a jury on the issue of damages. At trial, defendants objected to plaintiff's claims on behalf of Ms. Hubbard's siblings, asserting that the statute precluded them from recovering. The trial judge disagreed, permitted the plaintiff to submit evidence of the loss suffered by all family members and submitted a special verdict form to the jury which was returned after having been completed as follows:

"FORM OF VERDICT

"WE, THE JURY, FIND THE FOLLOWING DAMAGES:

"1. Funeral and burial expense $ 1,433.55

"2. Reasonable compensation for the pain and suffering by Jackie Lynn Hubbard, while she was conscious during the time between her injury and her death $10,000.00

"3. Loss of society, companionship and nurture suffered by her father Larry Crystal as a result of his daughter's death $25,000.00

"4. Loss of society, companionship and nurture as a result of her daughter's death suffered by her mother Delores Hess $ _________

"5. Loss of society and companionship as a result of their sister's death suffered by:

Deborah Weis (sister) $ 1,000.00

Larry Wayne Crystal (brother) $ 1,000.00

Donald Crystal (brother) $ 1,000.00

Cindy Tucker (sister) $20,000.00

Kimberly Crystal (sister) $20,000.00"

In conformance with this verdict, a judgment of $79,433.55 was entered in plaintiff's favor.

Defendants succeeded in obtaining a post-trial order of remittitur reducing the $79,433.55 award by $5,000. That order is not at issue in this case.

Defendants appealed, claiming 1) that the damages awarded in item 5 of the verdict form are not permitted under § 2922(2); 2) that use of a special verdict form apportioning damages among individuals is precluded by the apportioning provisions of § 2922(2); and 3) that the $10,000 award for pain and suffering was excessive.

As to defendants' first claim, the Court of Appeals concluded that § 2922(2) permitted only actual heirs at law and nearest of kin to seek recovery for a wrongful death and that since Ms. Hubbard's siblings were related under civil law only in the second degree, while her parents were first-degree kin, the plaintiff's judgment must be reduced by $43,000, the amount awarded to Ms. Hubbard's siblings.

In the dispositional part of its published opinion, the Court of Appeals stated:

Crystal v Hubbard, 92 Mich. App. 240; 285 N.W.2d 66 (1979).

"That portion of the judgment representing the claims of the siblings is shown by the jury's verdict to total $43,000. Taking into account the unchallenged post-judgment remittitur of $5,000, the amount of the greatest judgment supported by the law is $31,433.55.[9]

"[9] The statute is silent on the propriety of such individualized jury `verdicts' as were employed in the case at bar. Clearly, such a statement from a jury can never be more than advisory. The trial judge is never released from his obligation to `advise the probate court by written opinion' of the proportion of losses suffered by each surviving next of kin. Nor is the probate court ever freed from its obligation to finally determine that apportionment. MCL 600.2922; MSA 27A.2922. Because the courts' duties of apportionment do not appear to be for the benefit of defendants or of administrators qua administrators, the trial court's practice can have done no harm to the parties before the court in the case at bar. Cf. Hix v Besser Co, 386 Mich. 499; 194 N.W.2d 333 (1972)." 92 Mich. App. 249. As is evident from the quoted footnote, the Court of Appeals considered defendants' second claim of error and rejected the contention that the trial judge erred in submitting the special verdict form to the jury.

By the same token, the Court of Appeals statement that "the amount of the greatest judgment supported by law is $31,433.55" is at least an implicit indication of the Court's rejection of defendants' claim that the $10,000 award for pain and suffering was excessive and unreasonable.

Defendants have done nothing to pursue either of these latter two claims since the submission of their brief to the Court of Appeals. Contrary to the assertions made in their brief to this Court, nothing in our order granting leave precluded them from advancing those claims here. Because they are not asserted here, we do not consider these claims.

The substance of our order granting leave to appeal contained no restrictive language. It reads in relevant part:
"On order of the Court, the application for leave to appeal is considered, and it is granted. The parties are directed to include among the issues to be briefed: are brothers and sisters of the deceased entitled to damages for loss of society and companionship under Michigan's wrongful death act where both parents of the deceased are still living?" (Emphasis added.)

Defendants' failure to make application for leave to appeal or to cross-appeal on these issues precludes our review. GCR 1963, 852.2 and 853.2.

I

We turn then to decide whether the brothers and sisters of a person suffering death wrongfully at the hands of another are entitled to seek damages for loss of society and companionship in cases where the decedent has left a surviving spouse and parent.

Resolution of the issue begins with an interpretation of the meaning of the following statutory passage from § 2922:

"(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. 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. 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 shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto. Within 30 days after the entry of such judgment, the judge before whom such case was tried or his successor shall certify to the probate court having jurisdiction of the estate of such deceased person the amount and date of entry thereof, and shall advise the probate court by written opinion as to the amount thereof representing the loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total loss suffered by the surviving spouse and each of the next of kin of such deceased person, as shown by the evidence. 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 loss suffered by the surviving spouse and 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." MCL 600.2922(2); MSA 27A.2922(2). (Emphasis added.)

Our focus is directed primarily toward the emphasized damage entitlement and distribution language, creating a right to seek damages on behalf of that "class who * * * would be entitled to inherit * * * had [the deceased] died intestate" and providing for distribution of damages to the "surviving spouse and next of kin" who suffered injury "and in proportion thereto".

The primary and generally understood meaning of that critical statutory language, construed in light of the effect of its practical application taken together with our assessment of the historical development of § 2922, and the case law construing its evolving provisions, including the legislative reaction thereto, lead us to conclude that the Legislature's purpose would be defeated by the Court of Appeals interpretation of § 2922. We are convinced that the Legislature never intended, in a case such as this one, to limit the right to seek damages for wrongful death to the actual "heirs at law" by which is meant those persons who are the nearest of kin actually surviving decedent who would be entitled to inherit pursuant to our law of descent and distribution.

A satisfactory answer to the stated issue is not plainly evident merely upon examination of the naked and somewhat opaque language of the statute. The critical language quoted and emphasized is abstruse and uninstructive, for although it identifies the persons who are entitled to damages for the wrongful death of another as "the class" who, by law, would be entitled to inherit had the decedent died intestate, it provides no enlightenment to determine when that class is to be identified. Does the statute itself establish the class? In other words, should the language be interpreted as establishing, at the time of enactment, a class of persons entitled to seek recovery which includes all those who, under the countless varying possibilities which might exist in the future at the time of a decedent's wrongful death, would be eligible to inherit under Michigan's intestacy laws? If that is the case, Ms. Hubbard's brothers and sisters are entitled to the recovery awarded to them for Ms. Hubbard's death. Or does the statute mean that the "class" named in the statute is left open to be defined only in the future at the actual time of decedent's death and depending upon the particular legal relationship of the surviving relatives in a particular case? If that is the case, Ms. Hubbard's surviving parents alone would be entitled to seek damages.

A

The search for an answer to these questions is not benefited by resort to the expressions "surviving spouse" and "next of kin" which immediately follow the statute's use of the term "class" and are repeated throughout the statute's distribution provisions. Alone or in context, those terms, without more, are unenlightening.

We are convinced that the statutory language in question, construed in the light of its legislative history and read against the illuminating background of this Court's decisions, means that the "class" entitled to seek damages includes at least the "surviving spouse and next of kin" to whom distribution was ordered in this case.

We conclude, first of all, that the Legislature intended that the term "class" includes at least "the surviving spouse and next of kin who suffered injury" as a result of the wrongful death of another. We think that much is plain from the Legislature's reaction in 1939 to the decision in In re Venneman's Estate, 286 Mich. 368; 282 N.W. 180 (1938), in amending the death act, 1939 PA 297, in a way clearly designed to authorize the distribution of an award to the individual who actually suffered a pecuniary loss as a result of the wrongful death.

Section 2 of the 1939 act provided:
"Sec. 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."

In Venneman, the deceased's adult son by a former marriage, who made no claim of pecuniary injury, was entitled to share half of a $4,000 settlement paid to the surviving widow. The prior statute, which was in effect at the time Venneman was decided, provided:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

* * *

"Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and the amount recovered in every such action, shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they 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." 1929 CL 14061, 14062. (Emphasis added.)

In a unanimous opinion for the Court in Venneman, Justice NORTH interpreted this statute as first requiring a determination of the amount of the pecuniary injury resulting from a wrongful death, then requiring distribution of that amount to intestate heirs without regard to actual injury. As Justice ADAMS pointed out some time later in his dissent in Breckon v Franklin Fuel Co, 383 Mich. 251, 282; 174 N.W.2d 836 (1970):

"In effect, the Court determined [in Venneman] that the damages recovered under the provisions of the death act as then in force were to be distributed among the beneficiaries not according to damage suffered by each of them but according to the proportions fixed by the statute of descent and distribution."

As indicated, in apparent response to the perceived injustice of the result in that case, the Legislature, in 1939, amended the damages and distribution portion of § 2922 to authorize distribution of an award only to those persons actually injured by a wrongful death and entitled to seek a recovery.

If we were now to construe the "surviving spouse and next of kin" entitled to the distribution of any injury award as consisting of a category of persons different than those entitled to seek wrongful death damages — the "class who * * * would be entitled to inherit * * * had [the deceased] died intestate" — we would be resurrecting a dichotomy between those entitled to generate a wrongful death award and those entitled to its distribution, which was abrogated by legislation in 1939.

Therefore, we are inclined to believe that the expression "next of kin", as used in the statute, was intended by the Legislature to mean such persons within the eligible "class" as can prove a compensable injury.

That is not the end of our task, however, because the expression "next of kin" is an inexact, even ambiguous phrase. Does it mean nearest relatives or all relatives? The ambiguities inherent in the expressions "class" and "next of kin" as contextually employed by the Legislature in § 2922(2) requires us to turn elsewhere to discern the will of the Legislature.

B

All parties and the Court of Appeals recognize the importance of what was said in MacDonald v Quimby, 350 Mich. 21; 85 N.W.2d 157 (1957), as bearing on the proper interpretation of § 2922(2). We find that opinion to be of major significance to the resolution of the issue presented in this case.

Plaintiff claims that MacDonald clearly "negated the contention that recovery in a wrongful death action is limited * * * to qualifying [as opposed to potential] `heirs at law'", since that Court permitted the decedent's mother to intervene in the wrongful death action despite the survival of the decedent's spouse and children. He assigns special significance to the passage by Justice KELLY in MacDonald which states:

"The petitioning mother was of a class who would be entitled to inherit the personal property of the deceased had he died intestate. The fact that she would not inherit if he died intestate leaving a wife and children would not eliminate her from that class." 350 Mich. 32.

While at first glance the Court's statement seems confusing, even contradictory, its meaning becomes clearer when considered in light of the specific issue facing the MacDonald Court and indeed facing us in this case, viz., what is the frame of reference which defines the category of persons the Legislature has called "the class * * * entitled to inherit the personal property of the deceased had he died intestate"? Is "the class" a universal legal concept intended by the Legislature to mean the broadest group of persons legally authorized to inherit the property of an intestate deceased in a theoretical case, or only those persons who, by reason of the fortuitous circumstances of the size and composition of a particular family and the legal relationship of its members, are actually eligible to inherit the deceased's property to the exclusion of other relatives lesser ranked in the table of descent and distribution?

Writing for the majority in MacDonald, Justice KELLY plainly was of the view that "the class" meant the broader, theoretical group of potential heirs. Since, in that case, the deceased's mother was a member of that category, she was entitled to attempt to prove her pecuniary loss, despite being actually excluded from the category of those entitled to inherit her son's property because of the happenstance in that case of the existence of a closer heir, the deceased's wife.

Justice KELLY went on to write:

"There is no ambiguity in the words of the statute which provide `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 thereof.' * * *.

"Nor is there ambiguity in the provision that `the judge before whom such case was tried * * * shall certify to the probate court * * * the amount thereof representing the total pecuniary loss suffered by the surviving spouse and all of the next of kin, and the proportion of such total pecuniary loss suffered by the surviving spouse and each of the next of kin of such deceased person.'" (Emphasis in original.) 350 Mich. 32-33.

Having so concluded, Justice KELLY found at least two compelling reasons to justify the decision to recognize the petitioner-appellant's claim:

First, decedent's survivors in that case, besides his wife, were his children and his mother, all of whom qualify as first-degree kin. Thus, under MacDonald's specific facts, there was no need to consider whether "next of kin" means nearest relative or all relatives included in our laws of descent and distribution. Second, Justice KELLY recognized that the "next of kin" distribution language of § 2922(2) was written into the statute in response to Venneman and was intended to ensure that distribution was made to those within the "class" who were actually damaged by the wrongful death. Therefore, having found the decedent's mother to be in the "class" entitled to seek damages, the Court concluded that she was a "next of kin" for purposes of distribution of an award attributable to her loss.

According to civil law, the degree of kinship between A and B is computed by counting the intervals from A through A's lineal descendants or ancestors to that ancestor or descendant common to A and B and then back to B. Thus, as between cousins, the degree of kinship would be four, between siblings, two, between uncle and nephew, three, and so on.

Under our intestacy laws, not all relatives are potential intestate heirs. MCL 700.106; MSA 27.5106 which identifies potential intestate heirs excludes one's great-grandparents and their issue as potential takers of intestate property as well as all lineal ancestors and their issue beyond great-grandparents.

We do not agree with the Court of Appeals characterization of MacDonald as involving

"the Court's deliberate adoption of the civil law meaning of `next of kin' in contrast with [separately concurring] Mr. Justice BLACK'S preferred `blood relative' equivalent of that term",

and its conclusion

"that while the `class of persons who, by law, are entitled to inherit' was `opened' by the legislative employment of `next of kin' in the same paragraph, that class was expanded only to include those persons who are next of kin according to the civil law meaning of the term." 92 Mich. App. 248-249.

Nowhere in MacDonald did the Court expressly adopt a "nearest relative" interpretation of "next of kin". The opinion refers to both possible meanings of "next of kin"; that is, nearest relative or simply relative, but does not clearly adopt or approve one meaning in preference to the other, probably because such a choice was not necessary to the decision. Similarly, there is no basis to conclude that the MacDonald Court interpreted the "class" as one of actual intestate heirs "opened" by the legislative employment of "next of kin". Instead, the majority opinion merely concluded that the mother was not eliminated from the statutory "class" simply because of the survival of decedent's wife and children. Such a conclusion can only be understood as a finding that the "class" is one of potential heirs of the intestate's property, not actual heirs only identifiable at the time of decedent's death.

Concurring separately in MacDonald, Justice BLACK wrote:

"Any `next of kin,' i.e., blood relative, is a rightful beneficiary in such case provided he or she is shown to have been dependent in fact or law on the decedent when death occurred and is a member of the statutory `class' from which, in the variant circumstances of succession, the inheritor or inheritors of the personal estate of one dying intestate are selected." 350 Mich. 34.

It is apparent that Justice BLACK interpreted the majority opinion as opening the door to any "blood" relative, as he put it, who could demonstrate the appropriate pecuniary injury. That same interpretation can be attributed to Justices TALBOT SMITH and VOELKER, who signed the concurring opinion, as well as to Justice EDWARDS who signed both the majority opinion and Justice BLACK'S opinion.

We are satisfied that despite his use of the familiar expression "blood relative", Justice BLACK and the Justices who signed his opinion did not intend to exclude lawfully adopted children from the category of "rightful beneficiar[ies]" to which reference is made in the concurring opinion, since then, as now, adopted children inherit as if born to the adoptive parents. See MCL 700.110; MSA 27.5110.

We are in agreement with the MacDonald Court's assessment of the meaning of the statutory language there and here in issue, and the views expressed by visiting Court of Appeals Judge QUINNELL when, in Scott v Burger King Corp, 95 Mich. App. 694, 701; 291 N.W.2d 174 (1980), he wrote:

"[The class] as interpreted in MacDonald expresses the class of beneficiaries, i.e., potential (as distinct from actual) inheritors of personal property, who are entitled to recover damages. * * * Read within the structure of the paragraph, the [sentence first referring to] and all later references to `surviving spouse and next of kin' concern the manner of distribution of the damages. The `surviving spouse and next of kin' are to recover those damages owing to them individually, certain creditors of the estate are to be paid, and the remainder of the estate passes by the laws of intestacy. Under our reading of the statute, `surviving spouse and next of kin' is a shorthand expression — albeit an inartful one — for `such person or persons who, by law, would be entitled to inherit the personal property of the deceased had he died intestate.'"

While obedient application of the doctrine of stare decisis alone would justify our adherence to the MacDonald Court's holding as we understand it, in order to determine who is entitled to seek wrongful death damages in the present case, we have further, and we think, compelling reasons for approving the Court's holding in MacDonald and reaching the decision we do in this case.

C

In the first place, we share Justice KELLY'S personal observation concerning the 1939 amendment to § 2922(2):

"The amendment was brought about because of the Venneman decision, supra, which brought into focus the injustice of taking from the surviving wife part of the damages collected and dividing said damages with a son of the deceased by a former marriage who did not suffer pecuniary damages because of the tortious act.

"It is impossible for the writer of this opinion to conclude that in meeting such injustice the legislature created another injustice — namely, to hold blameless, as far as damages are concerned, one who brought to his death a son who was contributing to the support of his mother." 350 Mich. 33.

A generalized view of fundamental notions of distributive justice alone does not support the view that the Legislature intended to permit any potential intestate heir to establish a loss under our wrongful death provisions. We discern that intent as well from the historical development of this state's wrongful death legislation and the irrationally arbitrary results of a contrary interpretation.

Before 1971, all forms of our wrongful death legislation employed the term "pecuniary injury" to describe the only compensable loss which could be suffered by a person other than the decedent. Until 1960, it was a term consistently associated with notions of dependency and actual lost monetary support or maintenance occasioned by the wrongful death. It is safe to say that the 1939 amendments which first used the terms "class" and "next of kin", and which undoubtedly were a reaction to the perceived unfairness of Venneman where a non-dependent son was found entitled to share in the $4,000 settlement made with the surviving widow, re-emphasized the need to show some kind of financial dependency before a surviving spouse or next of kin could recover for the wrongful death.

See, for example, In re Olney's Estate, 309 Mich. 65; 14 N.W.2d 574 (1944); Grimes v King, 311 Mich. 399; 18 N.W.2d 870 (1945); and MacDonald v Quimby, 350 Mich. 21; 85 N.W.2d 157 (1957).

Dependency arising out of financial support was the historical key to recovery of a "pecuniary loss". "Dependency" became such an important concept in this Court in understanding what constituted a pecuniary injury that it began to take on the added role of defining who was entitled to seek damages for wrongful death. On two occasions Justice BLACK cited Poff v Pennsylvania R Co, 327 U.S. 399; 66 S Ct 603; 90 L Ed 749 (1946), to emphasize that the degree of relationship was a less important criterion for establishing a right to seek wrongful death damages than dependency between related individuals. In his view, dependency was the controlling factor, and he used Poff to support that view. In Poff, the United States Supreme Court interpreted the Federal Employers Liability Act, which provided that the employer's liability, in the case of an employee's death, runs "`to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee'". The deceased left surviving him as kin two sisters, a nephew, and a cousin, of whom only the cousin was dependent on him. Justice Douglas, speaking for the majority, reversed the Second Circuit Court of Appeals and held that within the class "next of kin", Congress had not intended to distinguish between degrees of kinship but meant to entitle any dependent kin to seek recovery so long as there were no survivors in the preferred classes. Again, the fact of dependency defined the right to recovery.

For a brief history detailing part of the judicial struggle with the wrongful death statute, see Justice ADAMS' dissent in Breckon v Franklin Fuel Co, 383 Mich. 251, 280; 174 N.W.2d 836 (1970). That dissent was adopted as the law in Michigan in Smith v City of Detroit, 388 Mich. 637, 649; 202 N.W.2d 300 (1972).

Justice BLACK first cited Poff in his separate concurrence in MacDonald which gained the approval of Justices TALBOT SMITH and VOELKER as well as Justice EDWARDS, who also signed the lead opinion.
The second citation to Poff occurred in Justice BLACK'S majority opinion in Breckon v Franklin Fuel Co, 383 Mich. 251, 273; 174 N.W.2d 836 (1970), which marked a short-lived return from Wycko v Gnodtke, 361 Mich. 331; 105 N.W.2d 118 (1960), to the restrictive financial dependency interpretation of pecuniary injury.

See the footnote on page 37 of Justice BLACK'S concurrence in MacDonald.

Justice BLACK'S reliance on Poff is illustrative of the prevailing judicial understanding that the legislative purpose in using the term "pecuniary injury" to define compensable losses was to compensate financially dependent kin. Given that prevailing and highly restrictive understanding of "pecuniary injury" and the fact that after 1939 and before 1971, despite a number of legislative reenactments and revisions of the death statute, the Legislature never deleted or explained the term, we are led to believe that the Legislature never intended to preclude any financially dependent relative from seeking damages for the wrongful death of his benefactor.

The prevalence of this view is indicated by the agreement of Justices TALBOT SMITH, VOELKER, and EDWARDS in MacDonald, and of Justices BRENNAN, DETHMERS, and KELLY in Breckon with Justice BLACK, and of Justices ADAMS and T.M. KAVANAGH, who in the dissent in Breckon, at page 296, expressly agreed with Justice BLACK'S view in MacDonald.

For a more comprehensive examination of legislative action and inaction, see the discussion by Justice ADAMS in his dissent in Breckon, 383 Mich. 291-295.

The harshness of the restrictive financial dependency interpretation of "pecuniary injury" was recognized and judicially abandoned in Wycko v Gnodtke, 361 Mich. 331; 105 N.W.2d 118 (1960), when the Court upheld a $14,000 jury award to the parents of a wrongfully killed minor son. While it marked neither the beginning nor the end of judicial debate over the appropriateness of attributing to the Legislature agreement with the broader judicial interpretation of "pecuniary injury", Wycko did represent, for the first time, an interpretation of "pecuniary injury" broad enough to encompass the loss of "mutual society and protection, in a word, companionship". No longer were damages for wrongful death tied strictly to lost wages or financial support. There was now recognition that the life of a deceased might have been intrinsically valuable to others besides the deceased, although the extent and nature of that value awaited further judicial clarification.

For an insight into the considerable disagreement on this point see: Courtney v Apple, 345 Mich. 223; 76 N.W.2d 80 (1956); Wycko v Gnodtke, 361 Mich. 331; 105 N.W.2d 118 (1960); Burns v Van Laan, 367 Mich. 485; 116 N.W.2d 873 (1962); Currie v Fiting, 375 Mich. 440; 134 N.W.2d 611 (1965); Heider v Michigan Sugar Co, 375 Mich. 490; 134 N.W.2d 637 (1965); Reisig v Klusendorf, 375 Mich. 519; 134 N.W.2d 634 (1965); Wilson v Modern Mobile Homes, Inc, 376 Mich. 342; 137 N.W.2d 144 (1965); Mosier v Carney, 376 Mich. 532; 138 N.W.2d 343 (1965); Breckon v Franklin Fuel Co, 383 Mich. 251; 174 N.W.2d 836 (1970).

"We are," wrote Justice TALBOT SMITH for the Wycko majority, "restricting the losses to pecuniary losses, the actual money value of the life of the child". 361 Mich. 340.

D

In his dissent in Heider v Michigan Sugar Co, 375 Mich. 490, 510; 134 N.W.2d 637 (1965), Justice ADAMS explained his views on the meaning and extent of "pecuniary injury" suffered by the family of two young brothers, James and David, who drowned in the defendant's pond. Although the majority disposed of the case on a finding of no liability, Justice ADAMS' disagreement led him to discuss the measure of damages. Joined by Justices T.M. KAVANAGH and SOURIS, he found a right to seek recovery for loss of society and companionship on behalf of siblings and grandparents, despite the survival of the boys' parents. He wrote:

" MacDonald v Quimby is applicable yet to the extent that it was there held, by all members of the Court, that the persons whose `pecuniary injury' is compensable under the death act are those who, in the variant circumstances of intestate succession, might be entitled to inherit the personal property of one dying intestate.

* * *

"The restriction of the class to Donald Heider, father of James D. Heider, by the trial judge was improper, since, in this case, there were other members of the class who should have been considered.

* * *

"Since the court did not make an award to cover the pecuniary injury to all of James' next-of-kin, it will be necessary to remand the case for a reconsideration of such award.

"Some further comment is appropriate with regard to the assessment of damages which the trial judge did make. He awarded $10,989.65 for the cost of raising James. The sum was incorrectly allocated to Donald Heider, father of James, who did not provide such cost. It should have been allocated to James D. Heider's grandfather, who incurred the cost, and who, being within the statutory class, would be entitled to recover.

* * *

"The loss of companionship in David's case runs not only to the father and mother but also to a younger brother and sister." 375 Mich. 513-515.

These statements, although expressed in dissent, are the only recorded observations by a member of this Court addressed to the issue of the validity of a claim for damages by a relative other than nearest of kin in a wrongful death action. Justice ADAMS' analysis, albeit in dissent, is enlightening to us in ascertaining the meaning of "the class who * * * would be entitled to inherit * * * had [decedent] died intestate", but its more important significance is in the fact that some of Justice ADAMS' views were promptly adopted by the Legislature, as will be seen below.

The majority in Breckon limited Wycko to its facts and held that Wycko did not authorize an expanded interpretation of "pecuniary injury" which would include loss of society and companionship. Justice ADAMS, again in dissent, discussed the history of wrongful death legislation both before and after Wycko and concluded:

"The legislature was familiar with the opinions of this Court dealing with the recovery of damages in cases of wrongful death and the manner of distribution to surviving spouse and next of kin when it had under consideration in 1960 a bill calling for a revised judicature act. The fact that a substitute provision was rejected and the existing provisions retained in the wrongful death section as enacted in the Revised Judicature Act of 1961 with subsequent amendment in 1965 shows more than passive acquiescence in the Court's interpretations of the statutes. It shows actual re-enactment of the statutes after this Court's interpretive opinions had been published for a sufficient time to permit their consideration by the members of the legislature, as well as by the bench and bar." 383 Mich. 298.

In the course of his Breckon dissent, Justice ADAMS twice made reference to what he had said in Heider and once made reference to Justice BLACK'S concurrence in MacDonald in an effort to support his belief that the Legislature was aware of the view that "pecuniary injury" had evolved in meaning to encompass loss of society and companionship attributable to potential intestate heirs.

Breckon, supra, 383 Mich. 289-290, 294, 295-296.

Legislative reaction to the Breckon opinions, majority and dissenting, was swift and decisive and is embodied in 1971 PA 65, now codified in MCL 600.2922; MSA 27A.2922, the statutory provision presently at issue. The major revision, which can only be viewed as a clear rejection of the Breckon majority's limited interpretation of "pecuniary injury", was to delete the term "pecuniary injury" in § 2922, and add "loss of society and companionship".

In thus addressing an aspect of the wrongful death act which had divided this Court for over ten years, the Legislature vindicated at least that part of Justice ADAMS' Breckon dissent which argued legislative acquiescence in the judicially announced view

See fn 13.

"that life has value not only to the person who has been deprived of its enjoyment by a wrongful death but to the spouse and next of kin who have lost those benefits of association we summarize in the word `companionship'". 383 Mich. 299.

We are not inclined to the view that in explicitly adopting the lost companionship measure of damages long accepted and advanced by Justice ADAMS, the Legislature at the same time rejected the Justice's intimately related view that such lost companionship could run to any potential, as opposed to actual, intestate heir.

We note that since the 1939 death act amendments there cannot be found any clear statement from any Justice of this Court which would preclude a potential intestate heir, who is not nearest of kin to the deceased, from seeking to recover damages, provided that that potential heir had suffered a compensable "pecuniary injury" or now, lost "companionship". On the contrary, Justice BLACK, in his concurrence in MacDonald, and Justice ADAMS in his unopposed views expressed in his dissent in Heider and reaffirmed in his dissent in Breckon, were clearly of the mind that such potential intestate heirs constituted the "class" entitled under the statute to prove a compensable loss. Furthermore, we think that in Smith v Detroit, 388 Mich. 637, 649; 202 N.W.2d 300 (1972), by explicitly adopting the whole of Justice ADAMS' dissent in Breckon as the correct statement of law in Michigan, this Court at least implicitly accepted his view that the wrongful death statute, in seeking to compensate for lost "companionship", speaks to all those extended family members identified in our intestacy provisions.

E

Given the fact that there is no record of legislative debate on the subject, we acknowledge a measure of uncertainty as to the specific intention, if any, of the Legislature concerning the meaning of the term "class" as it appears in § 2922. We cannot say with absolute certainty that the Legislature has consciously acquiesced in the interpretation of the "class" we have attributed to MacDonald, especially in light of the more restricted interpretation given MacDonald by the Court of Appeals panel in this case. Nevertheless, because every Justice of this Court who has expressed himself on the issue has interpreted the "class" language of § 2922 as encompassing potential intestate heirs, because none of those judicial statements has ever been expressly opposed by any Justice of the Michigan Supreme Court, because the Legislature has never undertaken to "clarify" the meaning of the "class" despite ample opportunity to consider the apparently prevailing and historic judicial view, and because the Legislature in 1971 expressly adopted a measure of damages (lost society and companionship) for wrongful death advocated by Justice ADAMS, a measure that he felt was inextricably bound to a broad interpretation of the "class", we are satisfied that the interpretation which we have given to § 2922 is within the intendment of the Legislature, if indeed it has given any thought to the matter at all.

II

As a final matter, and apart from the inferences to be drawn from the judicial and legislative history of § 2922, we do not think it was the intention of the Legislature to arbitrarily restrict the right to seek compensation to actual heirs at law and nearest of relatives while expanding the measure of damages to lost companionship. To do so would make the vagaries of familial survival the touchstone of recovery instead of the loss of the society and companionship which ordinarily exists among family members and, generally, to an even greater degree among more closely related individuals.

As the Court of Appeals in Scott v Burger King Corp, 95 Mich. App. 694, 703-704; 291 N.W.2d 174 (1980), pointed out:
"Consider the case of a decedent who lived with and supported his sibling for many years. If this decedent happened to have a child, the sibling would have no rights under the act, according to the Crystal Court. Yet it would be abundantly clear that the sibling, and possibly the child as well, would have suffered a loss. In a similar situation in which no child existed, the sibling could recover. Such a result would be nothing more than capricious and we cannot believe it was intended by the Legislature."
In similar fashion, under the Court of Appeals approach in this case, had Ms. Hubbard's parents died the day before she did there would be no question as to her siblings' right to seek recovery. If the intent (as it clearly is) is to compensate for the wrongful destruction of certain relationships by permitting recovery for loss of society and companionship, it would be adventitious to permit her parents, but prevent her siblings, from recovering on Monday for her wrongful death and, on the other hand, permit her siblings to recover on Tuesday provided she lived that extra day and her parents predeceased her. The nature of the loss to her siblings is no different on Monday than it is on Tuesday. Yet, under the Court of Appeals approach, the intervening death of her parents would make a complete difference.

Instead, we are convinced that the boundary we recognize today, establishing the right to seek compensation for the wrongful death of another, is in accord with the probable legislative judgment concerning human relationships inherent in our intestate succession laws. Those laws presume, as indeed is generally established by common experience, that certain intrafamily relationships are stronger than others and seek to distribute intestate property accordingly. There exists here an assumption that some positive relationship exists between almost all relatives. The wrongful death act, with its emphasis on compensating lost companionship, appears designed to compensate for the destruction of family relationships — those implicitly assumed to exist by our intestacy laws among family members identified as potential intestate takers.

It may be true that in individual cases it may seem arbitrary to permit recovery for lost companionship where one's close relative is wrongfully killed but to preclude recovery where one's equally close friend is wrongfully killed. It may have appeared to the Legislature that a boundary line drawn to distinguish between friends and relatives is considerably more logical than one drawn to distinguish between subclasses of family members recognizing only the nearest of kin as likely to suffer sufficiently from a decedent's wrongful death to entitle them to damages. Limiting the right to recover for lost relationships only to relatives included in our laws of descent and distribution is a logical reflection of the natural ordering of emotional, psychological, creedal, intellectual, and economic sharing upon which strong relationships are built and which is considered common to our society. The natural distinction between "family", i.e., relative, and non-family affords additional weight to our view that the Legislature intends to permit more than the nearest of kin to seek recovery.

Accordingly, the decision of the Court of Appeals is reversed.

KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred with RYAN, J.