Bond v. City of Huntington, 14307

• Decision Date: 31 March 1981
• Docket Number: No. 14307,14307
• Citation: 166 W.Va. 581,276 S.E.2d 539
• Parties: Jack E. BOND, Admr. v. The CITY OF HUNTINGTON, etc., et al.
• Court: West Virginia Supreme Court

Page 539

276 S.E.2d 539

166 W.Va. 581

Jack E. BOND, Admr. v. The CITY OF HUNTINGTON, etc., et al.

No. 14307.

Supreme Court of Appeals of West Virginia.

March 31, 1981.

Syllabus by the Court

1. Not only has the Legislature liberalized the wrongful death recovery statute through the years, but this Court has adopted a liberal construction of the statute from our earliest cases.

2. "Under the West Virginia wrongful death statute (W.Va.Code, 55-7-6 (1965)) a dependent distributee may be one who is partially dependent upon the deceased for services and may recover for pecuniary loss within the limits under the statute." Syllabus Point 2, Salerno v. Manchin, W.Va., 213 S.E.2d 805 (1974).

3. "Punitive or exemplary damages are damages which together with and in reasonable proportion to the amount of compensatory damages will punish the defendant and in the judgment of the jury be sufficient to deter others from engaging in like course of conduct." Syllabus Point 5, Spencer v. Steinbrecher, 152 W.Va. 490, 164 S.E.2d 710 (1968).

4. In an appropriate case punitive damages may be recovered in an action for wrongful death.

5. A rule permitting additional damages by way of compensatory interest on pecuniary losses incurred prior to trial in personal injury actions as well as wrongful death claims is consistent with our prior case law and our liberal interest statute.

Marshall & St. Clair and James W. St. Clair, Huntington, for appellant.

Greene, Ketchum, Mills, Bailey & Tweel and Menis E. Ketchum, Huntington, for appellees.

MILLER, Justice:

Jack E. Bond, the administrator of the estate of Cheryl S. Bond, appeals from the summary judgment order of the Circuit Court of Cabell County which denied his claims, under our 1965 Wrongful Death Act, for loss of services of his emancipated daughter, for punitive damages, and for prejudgment interest.

According to the affidavits and exhibits submitted in conjunction with the motion for summary judgment, it appears that Cheryl Bond, age 18, was killed on October 8, 1975, in an automobile collision. Her vehicle was struck at the intersection of Twelfth Avenue and Eighth Street in Huntington by a City of Huntington police car operated at that time by an on-duty city patrolman. The appellant stated in his complaint that the police car, before the impact, was traveling at a high rate of speed without the operation of warning lights, a violation of the law. The appellant further alleges that the police car failed to stop or yield at the stop sign that marked the intersection and struck Cheryl Bond's vehicle, which had the right of way and was already in the intersection. Cheryl Bond was killed in the collision.

The appellant's exhibits indicate that the city patrolman had an extensive record of prior automobile collisions. At the time of the accident, the deceased was 18 years old and employed, living with her parents to whom she contributed household services but no direct monetary support.

The deceased's administrator, in his amended complaint against the patrolman and the City of Huntington, as his employer, alleges gross negligence and recklessness on the part of the patrolman in the operation of the patrol car. As against the City, he alleges willful and wanton negligence in employing the patrolman under circumstances in which the City knew, or should have known, that the patrolman was physically and mentally unfit to operate a police car. The complaint set forth as damages $10,000 in general damages, $1,700 in funeral expenses, $100,000 for pecuniary loss, and $100,000 in punitive damages.

On motion for summary judgment, the trial court ruled that "plaintiff is only entitled to recover the maximum sum of $10,000 plus funeral expenses." Recovery for loss of services, punitive damages, and prejudgment interest was not allowed. The appellant contends that the trial court erred because there were sufficient facts in the record to permit some recovery for pecuniary I.

loss and, as a legal matter, punitive damages and prejudgment interest were also recoverable.

INTERPRETATIVE BACKGROUND

Two propositions are apparent when we look at the history of our Wrongful Death Act. The first is that in recent years the Legislature has liberalized the scope of the statute by increasing the amount of damages recoverable and by expanding the type of damages recoverable. The second proposition is that this Court has historically given the State's Wrongful Death Act ¹ a liberal construction.

Up until 1955, ² the maximum amount that could be recovered in an action for wrongful death was ten thousand dollars. W.Va.Code, 55-7-6 (1931). Under this statute it was not necessary to show either pecuniary loss or dependency in order to recover. Utt v. Herold, 127 W.Va. 719, 34 S.E.2d 357 (1945); Kelly v. Ohio River Railroad Co., 58 W.Va. 216, 222, 52 S.E. 520, 523 (1905). The recovery under this statute was essentially for solatium, with compensatory damages permitted if shown, as long as the ten thousand dollar limit was not exceeded.

In 1955, the amount of recovery was changed so that an additional ten thousand dollars could be recovered by showing evidence of "financial or pecuniary loss sustained by a distributee or distributees." W.Va.Code, 55-7-6 (1955). In Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963), we concluded that this 1955 amendment permitted the recovery of an additional ten thousand dollars upon a showing of some pecuniary loss and that the initial ten thousand dollars could be recovered without a showing of pecuniary loss.

In 1961, the Legislature increased the overall limit from $20,000 to $25,000. With that amendment, $15,000 could be recovered for pecuniary loss in addition to the initial $10,000 for solatium. W.Va.Code, 55-7-6 (1961). In 1965, the maximum amount of recovery for pecuniary loss was extended to $100,000. The statute also recognized for the first time recovery of the "funeral, hospital, medical and such other expenses" resulting from the wrongful death. W.Va.Code, 55-7-6 (1965).

Finally, in 1976 the statute was substantially broadened to remove any maximum limit on the amount of recovery. The dependent distributee limitation was largely removed and the elements of recoverable damages were expanded. ³ W.Va.Code, 55-7-6 (1976).

As we have noted, not only has the Legislature liberalized the wrongful death recovery statute through the years, but this Court has adopted a liberal construction of the statute from our earliest cases. Thus, in Richards v. Riverside Iron Works, 56 W.Va. 510, 515, 49 S.E. 437, 438 (1904), we said:

"The statute is remedial and should be construed liberally for the purpose of carrying out the legislative intent."

See also Baldwin v. Butcher, 155 W.Va. 431, 184 S.E.2d 428, (1971); Wilder v. Charleston Transit Co., 120 W.Va. 319, 197 S.E. 814 (1938).

A review of our cases reveals we have given more than lip service to this rule of liberal construction. In Baldwin, we concluded that, despite a considerable split of outside authority on the point, an action could be brought under our 1965 wrongful death statute by the personal representative of a viable although unborn child. In Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963), we concluded that the 1955 wrongful death statute allowed $10,000 for damages whether or not a pecuniary loss was shown. Even though our 1955 wrongful death statute did not authorize the personal representative to collect funeral, hospital and medical expenses connected with the wrongful death, in Stamper v. Bannister, 146 W.Va. 100, 118 S.E.2d 313 (1961), we nevertheless held they were proper elements of damages.

With this interpretative background, we address the issues raised by the appellant, namely, whether the court erred in granting summary judgment for the appellee, thereby denying the appellant an opportunity to prove claims for pecuniary losses, punitive damages and prejudgment interest.

II.

PECUNIARY LOSS

The question of whether the surviving parents of a deceased unmarried daughter may recover for pecuniary loss arising from her wrongful death under W.Va.Code, 55-7-6 (1965), turns on the question of whether the parents are "dependent distributees." The word "dependent" was first inserted into our statute in 1965. ⁴

Filed in the record of this case is the affidavit of the appellant administrator which sets out the services performed by the decedent who lived at home with her parents:

"Decedent assisted with the cooking, dishwashing, laundry, housekeeping including cleaning and dusting, yard work, garden work, canning, running errands for family members, nursing sick family members, making clothes for herself and for other members of her family, looking after younger children, receiving phone calls relating to her parents' business, chauffeuring family members, participated in home repairs and maintenance including painting and other tasks and otherwise performed many other services which were of financial and pecuniary value."

In Syllabus Point 2 of Salerno v. Manchin, W.Va., 213 S.E.2d 805 (1974), we held in regard to the 1965 wrongful death statute:

"Under the West Virginia wrongful death statute a dependent distributee may be one who is partially dependent upon the deceased for services and may recover for pecuniary loss within the limits under the statute."

In Salerno, a deceased wife's surviving husband and daughter asserted that they were dependent distributees. This Court in upholding their position outlined the type of services that the deceased wife had rendered to them during her lifetime:

"Mr. Salerno also testified that prior to her death, his wife cut the grass, canned vegetables out of the garden, made a few clothes for herself and her daughter and occasionally drove the truck on errands. Mr. Salerno testified that figured conservatively his wife each week had spent approximately 21 hours cooking, 14 hours dishwashing, 10 hours laundering, 14 hours housekeeping, 10...