Connie's Prescription Shop v. McCann

• Decision Date: 30 July 1957
• Docket Number: No. 37369,37369
• Citation: 316 P.2d 823
• Parties: CONNIE'S PRESCRIPTION SHOP, an Oklahoma Corporation, Plaintiff in Error, v. Robert J. McCANN and Judy Kathleen McCann, by her father, Robert J. McCann, Defendants in error.
• Court: Oklahoma Supreme Court

Page 823

316 P.2d 823

1957 OK 197

CONNIE'S PRESCRIPTION SHOP, an Oklahoma Corporation Plaintiff in Error, v. Robert J. McCANN and Judy Kathleen McCann, by her father Robert J. McCann, Defendants in error.

No. 37369.

Supreme Court of Oklahoma.

July 30, 1957.

Rehearing Denied Oct. 15, 1957.

Syllabus by the Court

1. The amount of damages recoverable in a death case is always a question of fact for the jury, and the verdict of the jury on appeal will not be disturbed unless it appears from the record that the jury was awayed by passion or prejudice against the losing party or unless the recovery is so large as to shock the scense of justice, where there is competent evidence reasonably tending to support the verdict.

2. A verdict for $62,000 for wrongful death of the wife and mother of the plaintiffs is not excessive where the evidence discloses that her life expectancy was in excess of 38 years and that the average cost of employing a housekeeper who was also capable of properly caring for the allergic condition of the minor daughter plaintiff was between $250 and $300 monthly, and that decedent also performed other services of a monetary value to her husband, consisting of caring for the lawn and mowing the grass, doing all the family laundering and sewing, keeping the financial records of the family and managing the family expenditures so that they remained well within the family income.

Appeal from the District Court of Oklahoma County; Clarence Mills, Trial Judge.

Action for wrongful death of the wife and mother of plaintiffs, Robert J. McCann and Judy Kathleen McCann by her father, Robert J. McCann, wherein liability was admitted by the defendants, Connie's Prescription Shop, a corporation, and Mickey Merrill. Defendants appeal on ground of excessive verdict. Affirmed.

Pierce, Mock & Duncan, Oklahoma City, for plaintiff in error.

Whitten, Whitten & Fields, Oklahoma City, for defendants in error.

DAVISON, Justice.

This action was brought by Robert J. McCann and Judy Kathleen McCann, by her father, Robert J. McCann, as plaintiffs, against Connie's Prescription Shop, a corporation, and Mickey Merrill, as defendants, to recover for the alleged wrongful death of Betty Jane McCann, the wife and mother of the plaintiffs. The parties will be referred to as they appeared in the trial court.

The deceased, Betty Jane McCann, died on June 27, 1955, as a result of taking a dose of medicine compounded by the defendant, Mickey Merrill, a pharmacist employee of the defendant, Connie's Prescription Shop, and which contained a lethal poison, erroneously incorporated therein by said defendants. Legal liability was admitted and the only issue tried to the jury was as to the amount of damages. The verdict and judgment thereon was for $62,000 for wrongful death plus the funeral expenses. Defendants appeal therefrom upon the on proposition that,

'The verdict in this case was excessive and the trial court committed error in failing to order a new trial or a remittitur.'

The evidence can be more accurately evaluated if attention is first directed to the relative amount of the judgment as measured by decedent's life expectancy. The judgment was for $62,000 and the life expectancy was 38.61 years. By simple mathematical calculation, it is seen that the judgment was an award of some $1,605 per annum for the expected remainder of the life of plaintiff's decedent, had she lived. Turning then to the financial loss suffered by the plaintiffs by virtue of the wrongful death, the record discloses that the deceased was a capable and talented person. She was a normally healthy person with a marked degree of ability as a seamstress, a singer and a practical nurse. Judy Kathleen McCann, one of the plaintiffs herein, was a seven year old child at the time of her mother's death and was suffering from, and was being professionally, medically treated for, a type of skin allergy which required a highly specialized diet and repeated bathing which duties her mother performed in a very capable manner. That this allergic condition would continue for an indefinite number of years. The cost of a housekeeper who could also discharge these additional duties toward the child would have been a minimum of $300 monthly plus room and board.

The expectation of a child for contribution from the parent who has been wrongfully killed is not necessarily limited to the minority of the child but may extend to all pecuniary benefit reasonably expected. Belford v. Allen, 183 Okl. 256, 80 P.2d 671; Cook v. Knox, Okl., 273 P.2d 865; Gypsy Oil Co. v. Green, 82 Okl. 147, 198 P. 851. In the case under consideration, the evidence as to the character, ability and attentive disposition of the deceased coupled with the medical testimony concerning the nature of her child's ailment is amply sufficient to establish a reasonable expectation that the deceased would have continued these services and attentions beyond the child's minority.

Included in the services, above discussed and evaluated, were those services of the deceased as a housekeeper which were performed for the benefit of the husband as well as for the daughter plaintiff. The record contains much evidence also of other services which the deceased performed and which constituted a pecuniary benefit for the husband individually, who was a man of modest means 32 years of age. The deceased personally cared for the flowers around the home and cut the lawn rather than hiring it done at the husband's expense. She also did all of the family laundry. She did all of the family bookkeeping and business management, efficiently keeping the overall expense at a minimum and well within the husband's earned income. She did the family sewing, mending and related services, saving many dollars on the family clothing expense. These services which she performed had a sizeable pecuniary value to the husband, of which he was deprived by his wife's untimely death. The record does not contain any testimony of experts or opinion evidence establishing the monetary or pecuniary value of those expected services, but they were such that their value was well within the common knowledge of the average juror. They, in addition were in that category where the extent and value there would fluctuate with the living standards of the particular family being considered. Expert testimony would not necessarily be any more accurate or stable than the personal opinions of the individual jurors.

There is a market similarity between a death action wherein the husband, as here, seeks to recover the pecuniary value of the anticipated services of his wife, of which he has been deprived, and an action on contract wherein a plaintiff, similarly situated as was the deceased, seeks to recover the pecuniary value of the same type and kind of services, theretofore performed for another. The services are the same. Their pecuniary value must be established by the same kind of evidence. The measure to be used in such evaluation is referred to by the legal phrase 'quantum meruit.' The jury in either case must arrive at a specific and definite monetary sum in its verdict. At first blush, it would seem that there should be some evidence of the actual pecuniary value of such services and, indeed that is ordinarily so. But, where the type of service is not of a specialized character and is within the common knowledge of the average man who is also cognizant of what the services are worth, the requirements have been relaxed.

Recognition of that relaxation was made by the Ohio Court in the case of Hossler v. Trump, 62 Ohio St. 139, 56 N.E. 656, wherein it was held,

'When, upon the...