Wittel v. Baker

Orth, J., delivered the opinion of the Court. The question before us is whether Md. Code, Art. 67, § 4 (b) (Acts 1969, ch. 352, § 1 b) is to be.applied prospectively or retrospectively. We hold that it applies only to those actions brought pursuant to Code, Art. 67, § 1 in which the death of a wrongfully killed spouse or minor child occurred on or after 1 July 1969. I The statutory law of this State, in derogation of the common law, enables an action at law to be maintained against a person or vessel causing the death of a person by wrongful act, neglect or default.

Code, Art. 67, § 1; McKeon v. State, ex rel Conrad, 211 Md. 437 . Such action may be for the benefit of the spouse, parent (including the mother of an illegitimate child), and child (including an illegitimate child whose mother’s death was so caused) of the deceased, and, if there be no such person, then any person related to the deceased by blood or marriage who was wholly dependent upon the deceased, including dependents as defined by the Workmen’s Compensation Law. Art. 67, § 4 (a) ; Art. 101, § 58; Taylor v. State, ex rel. Mears, 233 Md. 406 . 1 The jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided among the said parties, in such shares as the jury by their verdict find and direct.

Art. 67, § 4 (a). This provision as to damages was also contained in the statute of 9 and 10 Vic., ch. 93, known as Lord Campbell’s Act, enacted by the English Parliament in 1846. It did not prescribe in ⁵³⁴ terms on. what principle the damages were to be assessed. However, when the question of damages first reached our Court of Appeals in B. & O. R. R. Co. v. State, Use of Mahone, 63 Md. 135 , the Court found it to be settled law under English decisions that damages are not to be given as a solatium for grief or mental suffering but must be founded on pecuniary loss, citing Blake v. R. R. Co., 18 Q. B. 93 and Franklin v. R. R. Co., 3 Hurl, and Nor. 211.

Thus damages were based on the pecuniary benefit the person injured by the wrongful death had in the life of the deceased and the claim must be founded on a pecuniary loss, actual or expected. “The right to maintain the action is therefore based on the pecuniary interest of the plaintiff in the life of the person killed, and the value of such interest is the measure by which damages are to be allowed.” B. & O. R. R. Co. v. State, use of Mahone, supra, at 146. The Court of Appeals consistently adhered to this construction. As recently as 23 January 1969 when it decided Hutzell v. Boyer, 252 Md. 227 , it quoted with approval United States v. Guyer, 218 F. 2d 266, 268 (4th Cir. 1954) : “Under the law of Maryland the measure of recovery for wrongful death * * * is the present value of the pecuniary benefit which the [survivors] might reasonably have expected to receive from [the deceased] if he had not been killed.” And see State ex rel. Parr v. Board of County Commissioners, 207 Md. 91 ; Bowman v. Wolleyhan Transport Company, 192 Md. 686 .

It was Acts. 1969, ch. 352, § 1 b, codified as Code, Art. 67, § 4 (b) which modified this rule. By it damages may be given as a solatium for grief or mental suffering on the part of relatives of certain deceased. It provides: “In the case of the death of a spouse or a minor child, the damages awarded by a jury in such cases shall not be limited or restricted to the ‘pecuniary loss’ or ‘pecuniary benefit’ rule, but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.” ⁵³⁵ II It is urged upon us to jettison the pecuniary loss rule in deciding the cases before us without regard to a retrospective application of § 4 (b). Our attention, is directed to the preamble to ch. 352, Acts of 1969: “WHEREAS, In actions by those entitled under the wrongful death statute for the death of a person or a minor child, the ‘pecuniary loss’ rule or the ‘pecuniary benefit’ rule has been adopted by the Court of Appeals to determine the measure of damages in such cases; and WHEREAS, The ‘pecuniary loss’ or ‘pecuniary benefit’ rule in the case of the death of an adult is determined by measuring the present value of the pecuniary benefit which those entitled might reasonably have expected to receive from that person, had that person not been killed, and in the case of a minor’s death, it is determined by measuring the pecuniary worth of the services which the child would have rendered during his life and to subtract from this probable cost of his maintenance, education and upbringing ; and WHEREAS, Strict application of this test in the case of an adult results in a failure of those entitled to recover to be compensated for the loss of probable future companionship, society,, comfort, and for the mental anguish, and in the case of a minor’s death, the strict application of this test results in a minus figure, since the value of his services lost by death in modem society is generally much less than the probable cost of raising the child; and WHEREAS, It is desirable to substitute a valid test for determining damages for the fictional test of the ‘pecuniary loss’ or the ‘pecuniary benefit’ rule in which emotional factors frequently enter; now therefore, * * ⁵³⁶ On this indication of legislative feeling we are importuned to make changes in the pre-existing law and there is quoted to us the language of the Court of Appeals in Deems v. Western Maryland Ry., 247 Md. 95 at 112-113: “[W]hile generally there should be adherence to precedent, the social interest served by certainty must, on occasion, be balanced against the social interest served by equity and fairness, so that the court is enjoined with the duty ‘of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure * * Cardoza, The Nature of the Judicial Process, 113 (Yale Univ.

Press 1955).” The rule we aré asked to jettison was, as has been pointed out, early established, consistently followed and lately affirmed. We are not persuaded that we should discard it other than by legislative directive. Any change that may be deemed advisable must come, we feel, from legislative enactment. And some change has so come.

But, despite its pronouncements in the preamble to ch. 352, it is patent that the legislature did not feel that the pecuniary loss rule was utterly wrong, for it superseded the rule only in the case of the death of a spouse or a minor child. We observe that if the death which was the cause of action in B. & O. R. R. v. State, use of Mahone, supra, had occurred after 1 July 1969 instead of 1 August 1883, the measure of damages would be the same as it was when the case was decided in 1885 because the person wrongfully killed was the mother of the claimant, and such a' deceased parent is not within the ambit of § 4 (b). The legislature had before it whether to make the provisions of § 4 (b) applicable to every wrongful death action but did not do so. The bill as written read: “In every such action, including the death of a minor child, * * *” but was changed before passage to read: “In the case of the death of a spouse or a minor child, * * Since we decline to depart from the established rule ⁵³⁷ of law as to damages by judicial fiat, our inquiry returns to the application of § 4 (b).

Ill Our first inquiry is whether § 4 (b) concerns matters procedural or matters of substance. “The various categories of matters procedural or those concerning the remedy, and matters of substance, vested or accrued, or not vested or accrued, as well as rights protected by the due process clause, tend to overlap in many instances and are not always easy to accurately recognize or to delineate or define in a given instance.” Janda v. General Motors Corporation, 237 Md. 161, 168 . A statute may be regarded as procedural for some purposes, such as conflict of laws, and as substantive for other purposes. It is clear from the preamble to ch. 352, Acts 1969, set out supra, that the statute was remedial — “[i]t is desirable to substitute a valid test for determining damages for the fictional test of the ‘pecuniary loss’ or the ‘pecuniary benefit’ rule in which emotional factors frequently enter * * But it does not necessarily follow that because it is “remedial” it is not substantive. The term “remedial statute” has been applied (1) to law relating to procedure, that is a law which relates solely to the remedy which may be employed to enforce or to protect a right which already exists; or (2) to a statute which makes a change in the substantive law of the State, but which is designed to correct an inadvertent error made in some prior statute or to change a law which has been found to be undesirable in some respect.

Manuel v. Carolina Casualty Insurance Company, 136 So. 2d 275, 280 (La. 1961); Wiebe v. Seely, Adminstrator, 335 P. 2d 379, 398 (Oregon 1959); Field v. Witt Tire Co., 200 F. 2d 74, 77-78 , (2nd Cir. 1952). We think the statute here made a change in the substantive law of Maryland, changing, at least in part, a law found to be undesirable in some respects. It permitted recovery for damages for solatium in a wrongful death action, which recovery had not theretofore been allowed. This was held to be a new cause of action, and ⁵³⁸ a substantive matter, in Smith, Administrator v. Mercer, et al., 172 S.E.2d 489 (N. C. 1970).

And it has been held to be a substantive matter when an amendment entitled recovery “in addition to damages now recoverable in such actions, the expenses incurred for medical and surgical care and for nursing of the deceased, and such other expenses, caused by the injury which resulted in death, as ■could have been recovered by the injured person in his lifetime; and * * * also * * * the reasonable funeral expenses * * Regan v. Davis, 138 A. 751, 753-754 (Pa. 1927). And it has been so held as to a statute merely increasing the monetary limit that was permitted to be recovered. Monroe v. Chase, et al., 76 F. Supp. 278, 279 (D. C. Illinois 1947); Keeley v. Great Northern Ry. Co., 121 N. W. 167, 170 (Wisconsin 1909).

See Conn. v. Young, 267 F. 2d 725 (2d Cir. 1959) ; Zontelli Brothers v. Northern Pacific Railway Co., 263 F. 2d 194 (8th Cir. 1959) ; Muckler v. Buchl, 150 N.W.2d 689 (Minn. 1967). And see also U.C.J.F.B. v. Bowman, 249 Md. 705 . We find that within the frame of reference of retroactivity vel non, the provisions of § 4 (b) were within the category of matters of substance. But we cannot say that the matters of substance with which the statute was involved were constitutionally protected.

It did not divest or affect vested rights, or' impair the obligation of a contract, or violate the due process clause, or operate as a bill of attainder or an ex post facto law. Compare Theodosis v. Keeshin Motor Express Co., 92 N.E.2d 794 (Illinois 1950) holding that an increase of maximum damages recoverable under a wrongful death statute was not retroactive because “the right of defendants to exemption from liability in excess of $10,000 is one of those rights which, having accrued prior to the passage of the act, cannot be affected by it.” At 802. IV “It has been stated so frequently by [the Court of Appeals], and others, that the ‘primary’, the ‘fundamental’, and the ‘cardinal’ rule in the construction of statutes is ⁵³⁹ to effectuate the real and actual intention of the legislature, that it no longer requires the citation of authorities to support the proposition.” Height v. State, 225 Md. 251, 257 . See U.C.J.F.B. v. Bowman, supra, at 708.

Except that a statute, even if the legislature so intended, will not be applied retrospectively to divest or adversely affect vested rights, to impair the obligation of contracts, or so as to violate the due process clause, or to operate as a bill of attainder or an ex post facto law, Janda v. General Motors, supra, at 169, the courts, under the cardinal rule, should ascertain whether the legislative intent was to have an Act apply prospectively or retrospectively and give that intention effect. When the legislature provides in the Act how it is to be applied the legislative intent is clear. When it does not so expressly or implicitly provide, certain presumptions arise as an