Schaible v. Myers

Blair Moody, Jr., J.

(dissenting). Less than two years ago, in Wood v The Detroit Edison Co, 409 Mich 279, 286-287; 294 NW2d 571 (1980), a majority of this Court reaffirmed Michigan’s rule that

" 'evidence of plaintiffs remarriage or the probability of her remarriage is irrelevant and, therefore, was properly excluded, in determining the damages she suffered upon the death of her spouse’".1

*710Describing the reasons for the rule, the Court noted:

"[E]vidence of the effects of a subsequent marriage should have no bearing on the amount due a plaintiff following a wrongful death. Compensation received from another source should not affect the responsibility owed to the injured party by the tortfeasor.” Wood, 287.

Because the majority decision today not only undercuts the rule so recently restated in Wood, but also conflicts with its underlying rationale, we respectfully dissent.

As stated by the Court of Appeals in the instant case:

"The defendants argue that the possible remarriage of the plaintiff in this case was not argued as a possible mitigating factor but that it was only mentioned to inform the jury that the plaintiff’s expert witness based his calculation of damages upon the assumption that the plaintiff would not remarry. The defendants contend that their right to cross-examine the plaintiff’s expert witness to determine the assumptions which he made in calculating damages extends to asking whether or not the expert assumed that the plaintiff would not remarry. Although the defendants’ cross-examination and argument did not explicitly state that the possibility of remarriage should be considered to mitigate damages, the facts actually elicited serve no purpose other than to infer [sic] that the expert’s estimate of economic loss was not accurate because it did not reflect a possibility that the plaintiff would remarry. The assumption implicit within the expert’s conclusion was, however, a proper application of the cases cited above [Bunda v Hardwick, 376 Mich 640; 138 NW2d 305 (1965); and Bradfield v Estate of Burgess, 62 Mich App 345; 233 NW2d 541 (1975), lv den 395 Mich 803 (1975)] to the estimate of damages in this case.”

Thus, in effect, defendants were permitted to *711bring an irrelevant and improper consideration, the possibility of plaintiffs remarriage, to the attention of the jury.2 Under the rationale stated in Wood, it should make no difference whether the jury is specifically told to. take account of the factor of remarriage in assessing damages, as occurred in Wood, or whether that factor is used to evaluate an expert’s testimony regarding damages, as occurred in the instant case. In either case, such evidence is irrelevant and should be excluded.

Accordingly, we would affirm the decision of the Court of Appeals and remand the case for a new trial.

Kavanagh and Levin, JJ., concurred with Blair Moody, Jr., J.

The Wood Court quoted Bunda v Hardwick, 376 Mich 640, 656; 138 NW2d 305 (1965). In Bunda, as in the instant case, the Court focused upon the issue of economic loss, as opposed to loss of consortium.

In the instant case, not only did defendants’ attorney raise the question of Mr. Schaible’s remarriage during cross-examination of the expert witness, but he also discussed the question and its answer during his closing argument. Such repetition may have served to exaggerate the improper effect upon the jury.