Flagtwet v. Smith

• Decision Date: 24 April 1985
• Docket Number: 14598,Nos. 14597,s. 14597
• Parties: Beverly A. FLAGTWET, Administratrix of the Estate of Arvid H. Flagtwet, Plaintiff and Appellee, v. Dawn SMITH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 188

367 N.W.2d 188

Beverly A. FLAGTWET, Administratrix of the Estate of Arvid H. Flagtwet, Plaintiff and Appellee, v. Dawn SMITH, Defendant and Appellant.

Nos. 14597, 14598.

Supreme Court of South Dakota.

Argued Jan. 11, 1985.

Decided April 24, 1985.

Gale Fisher, John Hughes of Fisher & Hughes, Sioux Falls, for plaintiff and appellee.

Chester A. Groseclose, Jr., of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for defendant and appellant.

WUEST, Acting Justice.

This appeal involves the nature, extent, and valuation of damages in a wrongful death action, pursuant to SDCL 21-5-7. We affirm in part, reverse and remand in part.

Arvid H. Flagtwet (decedent) died of injuries sustained in an automobile collision with Dawn Smith (appellant), which occurred on July 7, 1981, in Marshall County, South Dakota. In January of 1983, decedent's surviving spouse, Beverly Flagtwet (appellee), brought a wrongful death action against appellant. Liability was not seriously disputed and the trial court held that appellant's negligent failure to yield the right-of-way in compliance with SDCL 32-26-14 was the proximate cause of the accident and subsequent death of decedent.

Accordingly, the trial court determined the damages appellee is entitled to under SDCL 21-5-7, which provides: "In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought." (Emphasis added.) The court held that when the decedent is an adult, the term "pecuniary injury" entails strictly economic loss. Appellee has filed a notice of review contending that the term also includes the loss of companionship and society. We agree.

In Anderson v. Lale, 88 S.D. 111, 121, 216 N.W.2d 152, 158 (1974), this court interpreted the term "pecuniary injury" under SDCL 21-5-7 with regard to the wrongful death of a minor child. We reasoned that if merely a child's future earnings were considered, as against the cost of raising such child, only in rare cases would a child's earnings be more than his cost of upbringing. We therefore held that in a wrongful death action, "wherein the decedent was a minor, it is proper for the court to instruct the jury that the loss of companionship and society, which may be expressed by, but is not limited to, the words 'advice', 'assistance' and 'protection' are proper elements of damage for them to consider in reaching a verdict." 88 S.D. at 122-23, 216 N.W.2d at 158-59.

The trial court rejected our decision in Anderson as authority for the proposition that in a wrongful death action, wherein the decedent was an adult, the term "pecuniary injury" includes the loss of decedent's companionship and society, as well as strictly economic loss. We now hold that, regardless of the age of the decedent in a wrongful death action, it is proper for the trier of fact to consider the loss of decedent's companionship and society resulting from such death when determining the pecuniary injury to the persons for whose benefit such action is brought under SDCL 21-5-7.

That the term "pecuniary injury" is vague, ambiguous, and susceptable to judicial interpretation is apparent. ¹ Many courts have struggled mightily with a modern definition of the term. See, e.g., Smith v. City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972); Breckon v. Franklin Fuel Company, 383 Mich. 251, 174 N.W.2d 836 (1970); Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960); Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961); Selders v. Armentrout, 190 Neb 275, 207 N.W.2d 686 (1973); Hodkinson v. Parker, 70 S.D. 272, 16 N.W.2d 924 (1944).

Lord Campbell's Act, which served as a model for most American wrongful death acts, including our own, did not contain the words "pecuniary injury," or anything similar. Lord Campbell's Act provided: "[I]n every [wrongful death] action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought." ² Because of the inherent difficulties in evaluating injuries to sentiments and affections resulting from death, "injury," as contained within Lord Campbell's Act, was narrowly construed to afford beneficiaries in wrongful death actions only damages for losses deemed "strictly" economic, or those items which could arguably be measured in specific dollars and cents. ³ The rationale was that compensation for such things as companionship, society, grief, and mental anguish is too speculative. Thus, in an attempt to create a meaningful term of art from which to quantify the value of a human life, courts added the word "pecuniary" to injury, and the term "pecuniary injury" was subsequently codified in many wrongful death acts. ⁴

More recently, courts have recognized that the measure of "pecuniary injury" in wrongful death actions as "strictly" economic loss, is unduly restrictive. See, e.g., Fussner v. Andert, supra. Courts have allowed recovery for the loss of society, association, companionship, comfort, affection of the decedent, and acts of kindness which originated in the relationship between the decedent and the beneficiaries, in cases involving claims for the benefit of the decedent's parents, child, widow, widower, and collateral relatives. ⁵ Generally, however, compensation for injured feelings or "solatium" is still prohibited, and grief and sorrow are not considered items of pecuniary loss.

In Anderson, supra, we traced the history of SDCL 21-5-7 from its genesis in 1877, through various amendments and decisions construing the measure of damages recoverable therein, to the 1967 amendment which changed the term "all injury" to "pecuniary injury," thereby reenacting the statute as it existed in a period prior to 1947. Mindful of the fact that the term "pecuniary injury," as contained within SDCL 21-5-7, requires an interpretation based on legislative intent, we rejected the notion that the 1967 Legislature's reenactment of the pre-1947 statute was merely a codification of our pre-1947 decisions. These decisions construed the statute to disallow wrongful death recovery for loss of companionship, association, and advice. ⁶ We stated "that the 1967 legislature was well aware of the newer interpretations of pecuniary loss [or] injury, and it was their intent to only eliminate any recovery for sorrow, mental distress and grief suffered by the parents or any pain or suffering on the part of the decedent." 88 S.D. at 121, 216 N.W.2d at 158.

As we also stated in Anderson, 88 S.D. at 117, 216 N.W.2d at 155-56, our Wrongful Death Act "is remedial in character and, therefore, should be construed liberally in light of current social conditions." We believe that this premise is paramount to the premise that society and companionship may not be considered by the trier of fact because they are too speculative. For as the Supreme Court of Michigan reasoned in the landmark decision in Wycko, 361 Mich. at 340, 105 N.W.2d at 123: "it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong created." Moreover, we noted in Hoekstra v. Helgeland, 78 S.D. 82, 107, 98 N.W.2d 669, 682 (1959), that:

Juries are being asked daily to place values for similar damages in alienation of affection actions, on pain and suffering, to balance slight against gross negligence and mitigate damages accordingly in personal injury actions, on malice in actions where exemplary damages are allowable and in other cases which are as difficult as the case before us, so this should not be set up as a bar or argument against such recovery.

In this age of dangerous instrumentalities capable of ending life in a negligent instant, we allow recovery for wrongful death, and thereby acknowledge that persons have rights in their familial relations. Unpersuasive are the arguments for differentiating between the loss of decedent's wages, which are statistical projections of possible future earnings based on the laws of probability, and the benefits of companionship and society. While future earnings are more readily ascertainable than companionship and society, and the latter are, indeed, inestimable in terms of emotional loss, both are substitutionary relief, and both involve speculation on a future existence that will never be. Public policy mandates that the wrongdoer, and not the innocent victim, bear the burden of an imperfect system of valuation, in order to enhance the deterrent effect of our wrongful death act. As to this, Dean Prosser states:

The "prophylactic" factor of preventing future harm has been quite important in the field of torts. The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer. When the decisions of the courts become known, and defendants realize that they may be held liable, there is of course a strong incentive to prevent the occurrence of the harm.

Prosser & Keeton, On Torts, Sec. 4, at 25 (5th ed. 1984).

The measure of "pecuniary injury" as strictly economic loss is unduly restrictive and does not conform to present-day considerations. Therefore, we hold that regardless of the age of the decedent in a wrongful death action, under SDCL 21-5-7, the trier of fact may consider the loss of a decedent's companionship and society as expressed by, but not limited to, the words "advice," "assistance" and "protection," but without consideration for the grief and mental anguish suffered by the beneficiaries because of the wrongful death. Accordingly, we remand this issue to the trial court for consideration of these elements in the determination of appellee's damages.

Appellee called Dr. Ralph J. Brown as an expert witness to assist the court in determining the amount of economic loss to appellee. Dr. Brown is a Professor of...