Fussner v. Andert, 38223

• Decision Date: 15 December 1961
• Docket Number: No. 38223,38223
• Citation: 261 Minn. 347,113 N.W.2d 355
• Parties: Walter FUSSNER, as trustee for next of kin of Sandra Joan Fussner, Appellant, v. Albert R. ANDERT, Respondent.
• Court: Minnesota Supreme Court

Page 355

113 N.W.2d 355

261 Minn. 347

Walter FUSSNER, as trustee for next of kin of Sandra Joan Fussner, Appellant, v. Albert R. ANDERT, Respondent.

No. 38223.

Supreme Court of Minnesota.

Dec. 15, 1961.

Rehearing Denied Feb. 2, 1962.

SYLLABUS BY THE COURT

1. The death-by-wrongful-act statute, Minn.St. 573.02, is remedial in character and it is the court's duty to construe it liberally in light of current social conditions.

2. The narrow pecuniary-loss test, which limits recovery in an action by a parent for the death of a child to loss of earnings, contributions, and services in terms of dollars, is unduly restrictive and not in accord with current practice and experience. In such an action the jury should be instructed that where there is evidence to warrant recovery the survivor may be compensated not only for actual pecuniary loss of contributions and services but should be compensated as well for the loss of advice, comfort, assistance, and protection which the jury might find to be of a pecuniary value and which the survivor might reasonably have expected if the decedent had lived.

3. The legal obligation of the child to support a relative under § 261.01 is limited to the conditions prescribed by the statute and may not be enforced in an action against a third person.

S. Robins, Willard L. Converse and Robins, Davis & Lyons, St. Paul, for appellant.

Tyrrell, Jardine, Logan & O'Brien, and Raymond W. Fitch, St. Paul, for respondent.

MURPHY, Justice.

This case is before us on appeal from an order denying the plaintiff's motion for a new trial. The plaintiff father brought an action for the death of his 19-year-old daughter allegedly due to the wrongful act of defendant. The jury returned a verdict for $3,000, which plaintiff claims is inadequate. The verdict, which left general damages in the sum of $1,739 after payment of funeral expenses, resulted, according to plaintiff, from the charge to the jury which expressed 'an antiquated and restricted concept of 'pecuniary loss." We are asked to reexamine the term 'pecuniary loss' as used in Minn.St. 573.02, subd. 1, and to expand the scope and meaning of that term so as to make it applicable not only to damages resulting from money loss but to include as well damages for loss of aid, comfort, and society suffered by the next of kind of the deceased.

It appears from the record that plaintiff's daughter, Sandra Fussner, died from injuries received in an automobile accident which the jury found was caused by the negligence of the defendant. The father was 49 years of age at the time of the trial and is an engineer in a railroad car repair shop. Sandra was the younger of two daughters. Her mother died in 1952 after an illness which continued for 2 years. During the mother's illness the father relied upon Sandra for much of the housework, including cleaning and cooking. After the mother's death the two girls assumed the responsibility of maintaining the household until 1955 when the sister married. Thereafter those responsibilities were assumed by the decedent. In the fall of 1956 the father remarried. The second wife continued her employment outside the home. The decedent at the time of her death was employed as a typist-receptionist at a department store and for the 6 1/2-month period prior to her death earned $1,104.95. She purchased her own necessities, various items for the house, and gifts for her father out of her earnings. She paid $7 per week for her room, but beyond that no accounting was kept of what she spent for the household. There was a pleasant relationship between the decedent, her father, and stepmother, and she considered their home as her own. After her father's remarriage, there was no change in her routine of housework. Because the stepmother worked, the father relied upon her as before and it was customary for Sandra to start meals at night before the stepmother had returned home from work. The father testified:

'Sandra did all the washing, ironing, helped prepare the meals. My wife was working. Sandra was home every night. She would help wash the clothes, iron the curtains, scrub the floors, wax and shine the living room and bed rooms whenever they needed it.'

There was some reference in the record to the daughter's engagement to a young man from whom she received a ring on her graduation from high school. There were no definite plans as to a wedding. At the time of Sandra's death, the young man had moved to Florida where he was living with his parents. In the meantime Sandra had accepted other dates.

In submitting the case to the jury the court gave the standard and approved instruction on the subject of damages:

'If you award the plaintiff damages they must be in an amount which will fully, fairly and adequately reflect the present monetary value of any future contributions in money or services which you find Sandra would have made to her father during the remainder of their lives had she not been killed in this accident. In other words, if your verdict is for the plaintiff you must decide from the evidence what pecuniary or financial loss the plaintiff has sustained, but you may not include any amount as compensation for the father's grief, sorrow or mental anguish, nor are you permitted to make an award for the father's loss of his daughter's comfort, society or companionship. You must confine your award to any monetary loss the plaintiff has proved by virtue of his being deprived in the future of either financial contributions or contributions in services on the part of his daughter. Even though a child is not legally required to contribute to her parents after she becomes of age or becomes married, nevertheless you have the right to decide what voluntary contribution in money or services Sandra would have made to her father during the remainder of their lives.'

There is no contention that the court was in error in telling the jury that they could not include damages for the father's grief, sorrow, or mental anguish. It is asserted that the error lies in the fact that the instruction limited recovery to loss in terms of dollars and that in context the instruction permitting recovery for 'contributions in services' referred to labor or other employment performed pursuant to an understanding or agreement with the survivor and excluded from the consideration of the jury such real and substantial losses, which might be considered as having a pecuniary advantage to the survivor and which would be encompassed within the broad term of society and companionship.

In considering the issue presented, a brief reference may be made to the origin and development of death-by-wrongful-act statutes. At common law a civil action for wrongful death was not permitted; the only recourse against the wrongdoer being by criminal action. However, recovery for wrongful injury was allowed. It was, therefore, to the wrongdoer's financial interest if his injured victim died. To correct this inequity, Lord Campbell's Act ¹ was adopted, which allowed designated beneficiaries a right of action for damages sustained by them, provided, of course, that the deceased, had he lived, would have had a cause of action for the wrongfully inflicted injury. The pertinent part of the act (§ 2) reads as follows:

'* * * in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death * * *.'

While Lord Campbell's Act did not provide a yardstick by which damages were to be measured, the English court held that damages were to be based on pecuniary loss. ²

The original Minnesota act ³ was modeled after and enacted somewhat contemporaneously with Lord Campbell's Act. It was silent as to the kind and nature of damages to be recovered. The present Minnesota statute, Minn.St. 573.02, subd. 1, provides:

'* * * The recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, * * *.'

The foregoing provision was added by L.1951, c. 697, and incorporates the pecuniary-loss standard expressed by this court in early decisions. These decisions involved the issue of excessive verdicts and expressed the view that the statute did not comprehend payment of damages for 'mere loss of society or mental suffering' and that no pecuniary compensation can be given for 'loss of the comfort or companionship of a relative nor for the pain and suffering of the deceased.' ⁴

All of the states have adopted death-by-wrongful-act statutes. While it appears that most of these statutes are similar in phraseology, the rules as to right of recovery for loss of deceased's society vary in the several jurisdictions. This is due to statutory differences and divergent judicial interpretation. It appears that 25 states have enacted statutes similar to Lord Campbell's Act. These statutes do not specifically require the loss to be a pecuniary one, but the courts generally construe their statutes to include this requirement. The California court in construing such a statute (California Code of Civil Procedure, § 377) held that damages recoverable for death are limited to the pecuniary loss suffered, but limited to the pecuniary loss includes loss of comfort, protection, and society of the deceased. Duclos v. Tashjian, 32 Cal.App.2d 444, 90 P.2d 140. ⁵ Other jurisdictions, however, having similar statutes have precluded recovery for such elements of loss. ⁶ Certain states, including Minnesota, have statutes requiring that damages recoverable for wrongful death be limited to resultant pecuniary loss. ⁷ Of these states, Arkansas and Michigan permit recovery for loss of society, comfort, and companionship as a pecuniary loss. It appears that a total of 24 states allow recovery for loss of society, comfort, and companionship, while 16 jurisdictions specifically deny such recovery. Legislatures of 5 states have recognized the trend toward allowing recovery for loss of...