Franchell v. Sims

• Citation: 424 N.Y.S.2d 959,73 A.D.2d 1
• Parties: E. Raymond FRANCHELL, Individually and as Administrator of the Estate of Michael J. Franchell and John W. Franchell, both Deceased, Appellant, v. Robert R. SIMS and Sims Match Plate Corp., Respondents.
• Decision Date: 20 February 1980
• Court: New York Supreme Court Appellate Division

Page 959

424 N.Y.S.2d 959

73 A.D.2d 1

E. Raymond FRANCHELL, Individually and as Administrator of the Estate of Michael J. Franchell and John W Franchell, both Deceased, Appellant, v. Robert R. SIMS and Sims Match Plate Corp., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Feb. 20, 1980.

Magavern, Magavern, Lowe, Beilewech & Dopkins, Buffalo, for appellant (George R. Rich, Buffalo, of counsel).

Smith, Murphy & Schoepperle, Buffalo, for respondents (Richard K. Schoepperle, Buffalo, of counsel).

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and DOERR, JJ.

CARDAMONE, Justice Presiding:

On September 5, 1976 two brothers, Michael and John Franchell, were fatally injured in an automobile accident in West Monroe, New York. An action was brought by their father, the plaintiff, Raymond Franchell, individually and as administrator of their estates, to recover for their wrongful deaths and conscious pain and suffering. Prior to the trial defendants Robert R. Sims and Sims Match Plate Corporation stipulated to their negligence, the decedents lack of contributory negligence and to the reasonableness of the funeral and ambulance expenses in each case. Only damages remained to be tried. The jury returned a verdict in the sum of $3300 for the wrongful death at age 22 of Michael Franchell and $5840 for the wrongful death at age 16 of John Franchell and $1,000 for his conscious pain and suffering, together with a total for both cases of $4,909.01 for the stipulated amount for ambulance and funeral expenses. From this judgment and an order denying a motion to set it aside on the grounds that the verdicts were inadequate the plaintiff appeals.

The principal issue raised is whether the jury's award for the pecuniary loss suffered on account of the death of Michael and John Franchell was inadequate. We believe that it was.

The facts presented at this five-day trial reveal that 22-year old Michael was a high school graduate employed as an inspector at an industrial plant and that John was a high school student. Both were in excellent health, maintained average or above average grades in school, were outgoing and had many friends. Their parents, Raymond and Marlyn, were 49 and 48 at the time of the trial with life expectancies of 25.1 and 32.1 years respectively, and also were in excellent health. Evidence of Michael's future potential to his parents is derived from the fact that he was industrious and hardworking during his high school years and a year after he graduated obtained employment at the Chevrolet Plant in Tonawanda, New York. Except for periodic lay-offs, he worked steadily until the time of his death. His starting hourly wage was $4.64 an hour and had he returned in September, 1976 his hourly wage would have been $6.93. The testimony demonstrates that Michael maintained a close and loving relationship with his family; that he would "do almost anything for anybody" and that "he gave his heart to everybody". It is clear from the record that Michael performed valuable services for his parents, contributed financially to their household and was a generous and dutiful son. There was no proof, other than her testimony, that he planned to marry the witness, Debra Rust, with whom he was living. In any event, the record strongly indicates that if and when Michael had married it would not have affected his close and devoted relationship towards his parents.

John Franchell possessed the same personal qualities and traits as his older brother Michael. Evidence of his future potential to his parents is shown by proof that he too was industrious and hardworking, engaging in part-time jobs such as mowing lawns, raking leaves, shovelling snow for neighbors, fishing golf balls out of ponds and selling them. He also worked for his older brother, Ernie, in construction and was very helpful around the house. The record further shows that John was heading towards a promising career. His printing instructor testified that John was industrious and a good student, and he felt that John had a great future in the graphic arts field. At the time of his death, he maintained a close and loving relationship with his parents and other siblings.

In a wrongful death action the amount of recovery is measured by the "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (EPTL 5-4.3). Determining "fair and just" compensation is complex because the amount of pecuniary loss tends to be uncertain and problematical. Where parents are the plaintiff beneficiaries the pecuniary injuries include loss of their child's services (67 N.Y.Jur., Wrongful Death, § 167), not limited to the decedent's minority. Fair compensation may properly include probable, or even possible, benefits which might inure to the parents from their child's entire life, taking into consideration the possibility of failure or misfortune (Birkett v. Knick. Ice Co., 110 N.Y. 504, 508, 18 N.E. 108, 110; Bowles v. Rome, W. and O. R. R. Co., 46 Hun. 324, 327, affd. 113 N.Y. 643, 21 N.E. 414). Among the myriad factors to be considered are the decedents' physical status which includes factors such as age, sex, life expectancy, state of health, habits; and the decedents' earnings potential i. e., character, quality, intelligence, present and future earnings and probability of means to support parents, if they are in need. Also to be viewed is the relationship between decedent and those claiming to suffer pecuniary loss and those persons' health, age and circumstances (Windus v. Baker, 67 A.D.2d 833, 834, 413 N.Y.S.2d 67, 68; Freeman v. Corbin Ave. Bus. Co., 60 A.D.2d 824, 825, 401 N.Y.S.2d 224, 225; Lyons v. Arden De Vore, 48 A.D.2d 943, 944, 368 N.Y.S.2d 887, 890, affd. 39 N.Y.2d 971, 387 N.Y.S.2d 108, 354 N.E.2d 848; Tenczar v. Milligan, 47 A.D.2d 773, 775, 365 N.Y.S.2d 272, 275).

The assessment of damages in a wrongful death case is peculiarly within the province of the jury whose determination should not be...