Caen v. Feld

• Decision Date: 08 July 1963
• Docket Number: No. 49637,No. 2,49637,2
• Parties: Irene CAEN, Administratrix of the Estate of Herbert Grisbeck, Deceased, Appellant, v. Roger FELD, Respondent
• Court: Missouri Supreme Court

Page 209

371 S.W.2d 209

Irene CAEN, Administratrix of the Estate of Herbert

Grisbeck, Deceased, Appellant, v. Roger FELD, Respondent.

No. 49637.

Supreme Court of Missouri, Division No. 2.

July 8, 1963.

Opinion Modified and Motion for Rehearing or to Transfer to

Court En Banc Denied Oct. 14, 1963.

Sherman Landau, St. Louis, for appellant.

Fred B. Whalen, Warren Grauel, Whalen, O'Connor, Grauel & Sarkisian, St. Louis, for respondent.

STOCKARD, Commissioner.

This action for $25,000 compensatory damages was instituted by Irene Caen, administratrix, for the wrongful death of Herbert Grisbeck who met his death on September 25, 1960 as the result of being struck by the automobile of Roger Feld. Judgment was entered pursuant to jury verdict in the amount of $500. Plaintiff has appealed and asserts that she is entitled to a new trial on the issue of damages because the verdict is grossly inadequate, and because the court erred in refusing to admit evidence of funeral expenses. The difference between the sum claimed and sued for and the sum recovered upon the trial exceeds $15,000 and for that reason jurisdiction of this appeal is in this court. Davidson v. Schneider, Mo., 349 S.W.2d 908, 909; Pinkston v. McClanahan, Mo., 350 S.W.2d 724.

Herbert Grisbeck, who was at least 82 and may have been 84 years of age, left surviving him as his next of kin two adult daughters, Irene Caen who lived in Normandy, Missouri, and Loretta Brewster, a resident of the State of California. During the trial plaintiff offered evidence that the funeral expense for the burial of Herbert Grisbeck was $956.30, and that this amount had been paid by Irene Caen and Loretta Brewster. Defendant objected to this evidence on the ground that the beneficiaries 'did not have a legal obligation' to pay the funeral expenses and the evidence was excluded.

Section 537.090 (all statutory references are to RSMo 1959, V.A.M.S.) provides that the jury may give to the party or parties who may be entitled to sue 'such damages, not exceeding twenty-five thousand dollars, as the jury may deem fair and just for the death and loss thus occasioned, with reference to the necessary injury resulting from such death, * * *.' Although the person entitled to sue in this case is the administratrix of the estate of Herbert Grisbeck, she is a statutory trustee to maintain the action for the beneficiaries described in paragraph (4) of Section 537.080, Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S.W.2d 504, 506; Troll v. Laclede Gaslight Co., 182 Mo.App. 600, 169 S.W. 337, and it is as to those beneficiaries that the 'loss thus occasioned' and the 'necessary injury resulting from such death' is to be measured. The compensatory damages for wrongful death 'must be limited to the pecuniary loss,' but it is the 'legislative intent * * * to give the jury a broad discretion in computing damages for wrongful death, within the limit prescribed, based upon the pecuniary loss of every kind and character which, under all the circumstances of the particular case would necessarily result from the death, to those entitled to recover * * *.' Patison v. Campbell, Mo., 337 S.W.2d 72, 75. The determinative question is whether under the particular circumstances of this case the funeral expenses incurred and paid by Irene Caen and Loretta Brewster constitute a pecuniary loss.

As early as 1873 in a suit by a parent for the wrongful death of a minor child it was held that funeral expenses 'must, if any thing can, be one of the most obvious and necessary injuries resulting from death.' Owen v. Brockschmidt, 54 Mo. 285. See also Rains v. St. Louis, I. M. & S. Ry. Co., 71 Mo. 164, 36 Am.Rep. 459, and Hildreth v. Key, Mo.App., 341 S.W.2d 601. In Wilt v. Moody, Mo., 254 S.W.2d 15, funeral expense as an element of damages was not an issue, but it was held that medical expenses of a deceased wife may be proved as an element of damages in a suit by the husband for wrongful death when the expenses resulted from the wrongful act of defendant which caused the death. However, in McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803, suit for wrongful death was brought by the administrator of an adult on behalf of the deceased's parents and brothers and sisters, and it was there said: 'Defendant also challenges the competency of evidence as to medical and funeral expenses, and also for expenses incurred at a hotel, where deceased was taken in an effort to relieve him, and save him, if possible. It has been held a number of times in this state that such expenses are recoverable * * * where there was a legal obligation to furnish such aid, and to incur such expenses. [Citing cases]. But we find no authority to support the contention that such expenses are elements of damage in the situation here. There was no legal obligation on the part of any of the beneficiaries named in plaintiff's petition to furnish medical aid, or to incur expenses for the funeral. In Hickman v. Railway Company , it is said that the natural duty of the child to the parent has been from an early period in the history of the world an object of statutory solicitude, but that in the absence of legislation the distinction between the natural and the legal duty remains. * * * We hold that evidence of medical and other expenses incurred in treating deceased, and funeral expenses, are not proper elements of damage under the facts here.' (Italics added). Later, in Miller v. Williams, Mo., 76 S.W.2d 355, a suit by an administratrix for the wrongful death of an adult who left surviving him two adult daughters, it was said, citing the McCullough case, that it was not error to exclude evidence 'tending to show funeral expenses' because the 'beneficiaries were under no legal obligation to pay said expenses.' (Italics added). It is obvious that these two cases purport to set forth different rules whether or not it was done intentionally. Even though there be no 'legal obligation * * * to incur expenses for the funeral,' as stated in the McCullough case, the beneficiaries may as hereafter noted, incur a 'legal obligation to pay said expenses.'

There were no assets in the estate of Herbert Grisbeck. The only asset listed in the probate proceedings was the claim upon which this suit was based, which in fact was not an asset of the estate because such sum that may be recovered does not become a part of the general assets of the estate subject to the claims of creditors, but it is for the exclusive benefit of the persons designated by the wrongful death statute as beneficiaries. Demattei v. Missouri-Kansas-Texas R. Co., supra; Troll v. Laclede Gaslight Co., supra. Other than personal effects, which had no value, the deceased had no real or personal property whatever. His only certain income prior to his death had been approximately $62 per month from social security. If his two adult daughters, or some other relative or friend had not exercised the right to provide burial for him he necessarily would have been buried at public expense as a pauper, see Sections 58.460 and 194.150, or his body would have been made available to an educational institution pursuant to Section 194.150. By reason of the wrongful act of defendant in causing the death of Herbert Grisbeck, Irene Caen and Loretta Brewster were faced with the choice of permitting their father to be buried as a pauper at public expense or permitting his body to be turned over to an educational institution, or in the alternative, to incur the legal obligation to pay the expense of providing a decent burial for him. This obligation would result either by reason of an enforceable contract between them and some undertaking establishment to provide burial, or pursuant to Section 194.150 in order to obtain possession of the body to provide burial for it. There is no question but that in this case the deceased's daughters had the right of burial of their father, and it has been said that the 'duty of burial and the right of burial are concomitant so that the duty of burial has been held to rest on the person in whom the right resides.' 25 C.J.S. Dead Bodies Secs. 3 and 5. It may be true that this duty is not a 'legal' one in the strict sense of the word, but it is based on public interest, and the motivating influences on the part of children arising from this moral or natural duty, in all but the rarest of cases, to provide a decent burial for a parent would be at least as impelling as when based alone on a strict legal duty. We think the harsh rule announced in the McCullough case is unrealistic when applied to the particular factual situation of this case. By the performance of their moral or natural duty, Irene Caen and Loretta Brewster, as next of kin of the deceased, incurred the 'legal obligation to pay [the funeral] expenses' of their father, and that unquestionably resulted in 'pecuniary loss' which 'would necessarily result from the death, to those entitled to recover.' Patison v. Campbell, supra.

We conclude that when one or more of the beneficiaries named in paragraph (4) of Section 537.080 incurs a legal liability for funeral expenses to avoid or prevent the burial of the deceased at public expense as a pauper, or to prevent the consignment of his body to a medical institution, those expenses in a reasonable amount constitute an element of damages in a suit for wrongful death on the basis that they constitute a pecuniary loss within the meaning of the wrongful death statute. Under the specific facts of this case the evidence of funeral expenses in a reasonable amount was...