specially concurring.
I concur in the opinion by the majority and in the reasoning upon which it is based, with one exception.
The rule adopted by the majority properly limits "restitution” and "reparation” to " liquidated or easily measurable damages” payable to the "aggreived party,” but limits that term to "the direct victim of a crime.” I disagree with this further limitation in cases in which the "direct victim” is a child or spouse who has died as a result of a crime.
Thus, if a child or married woman is assaulted and if, as a result, medical expenses are incurred, payment of such expenses could be required as a condition of probation, regardless of whether the bills for such expenses would otherwise be payable by the father or husband of the victim. But if the same victim then died, payment of the same bill for the same medical expenses could not be required.
In my view, it is far more reasonable in cases in which the "victim” of the crime has died as a result of the crime to construe the term "aggrieved party” to include the parents or spouse of the deceased "victim,” although still limiting the "restitution” or "reparation” which may be required to actual out-of-pocket expenses, such as those incurred for ambulance, hospital, medical and funeral expenses for which there is a legal responsibility.1
The intended purpose of ORS 137.540(10), by its express terms, is to provide "reparation or restitution to the aggrieved party for the damage or loss caused by *691[a crime] * * In a homicide, the "aggrieved party” for the purposes of "reparation” or "restitution” is not the "direct victim,” who is beyond "restitution” or "reparation.” In such a case, the "aggrieved party” is the father or mother of a dead child, the wife of a dead husband, or the husband of a dead wife, who is left not only with "grief,” but often with large out-of-pocket expenses for medical and funeral bills for which he or she is legally responsible. I do not believe that such a limited extension of the rule adopted by the majority would result in what the majority refers to as the "legal and practical complexities” created by a "broad interpretation of ORS 137.540(10).”
Because, however, the "restitution” ordered by the trial judge in this case in the sum of $2,500 was not based upon a determination of the actual amount of any such out-of-pocket expenses, but was based solely upon the amount suggested in a letter from the attorney for Mr. Mackey, I agree with the majority that it was improper to require that defendant pay that amount to Mr. Mackey as a condition of defendant’s probation.
Cf. concurring opinion by Schwab, Chief Judge of the Court of Appeals, which raises the question whether a person who has a cause of action for wrongful death is an "aggrieved party” within the meaning of ORS 137.540(10).