Hurtig v. Bjork

• Decision Date: 16 November 1965
• Docket Number: No. 51822,51822
• Citation: 258 Iowa 155,138 N.W.2d 62
• Parties: Waldo HURTIG, Administrator of the Estate of Vicki Hurtig, Deceased, Appellant, v. Orville BJORK, Appellee.
• Court: Iowa Supreme Court

Page 62

138 N.W.2d 62

258 Iowa 155

Waldo HURTIG, Administrator of the Estate of Vicki Hurtig, Deceased, Appellant, v. Orville BJORK, Appellee.

No. 51822.

Supreme Court of Iowa.

Nov. 16, 1965.

Charles F. Knudson, Marcus, and James, Greer, Nelson & Bertell, Spencer, for appellant.

Cornwall, Cornwall & Avery, Spencer, and Smith & Grigg, Primghar, for appellee.

GARFIELD, Chief Justice.

Waldo Hurtig, as administrator of the estate of his little daughter Vicki, brought this law action to recover for her death from injuries received when struck by defendant Bjork's auto after she alighted from a school bus. Defendant admitted liability and the amount of recovery was submitted to a jury which returned a verdict of $28,000. On defendant's motion for new trial the court ruled this was excessive and ordered a new trial unless plaintiff remitted $16,000 from the verdict. Plaintiff appealed from this order.

The single assigned error asserts the verdict is sustained by sufficient evidence, is not excessive and not the result of passion and prejudice of the jury.

Vicki was fatally injured December 19, 1963, about 5 p. m. Her age was five years, ten months and 21 days. She died at 8:05 the same evening from a basal skull fracture. According to the 1958 mortality table approved by the state commissioner of insurance, found at page 2728, Code, 1962, the life expectancy of a child of six is 63.27 years, and of a person 21 it is 49.46 years.

I. The measure of damages in this state for death of a minor is well settled. It is correctly stated in instruction 3.10b of Iowa Uniform Jury Instructions prepared by a committee of the Iowa State Bar Association. The trial court used it here in instruction 7. It states in part:

'The measure of damages for the death of Vicki Hurtig, a minor, will be the present worth or value of the estate which she would reasonably be expected to have saved and accumulated as a result of her own efforts from the date of her majority, if she had lived out the term of her natural life. * * * In determining that amount you shall exclude the sum which she would have accumulated from the date of her death to the date of her attaining her majority.

'In estimating such damages, if any, you may and should consider the evidence on the expectancy of life of Vicki Hurtig, deceased, her health, physical and mental condition, her morals, her habits as to industry, thrift and economy, her interest in school, her grades and attendance, the occupation of her father, the contingencies of life such as ill health, unemployment, increase or diminution of earning capacity as age advances, and all other facts and circumstances in the evidence tending to show the amount, if any, that her estate might have accumulated from the date of her majority if she had not met death in the accident * * *.'

To the sum arrived at under instruction 7 two other sums could properly be added under instructions 8 and 9: 1) Interest on the reasonable funeral expense for such time as it was prematurely incurred, not to exceed $921, the amount of such expense. Soreide v. Vilas & Co., 247 Iowa 1139, 1153, 78 N.W.2d 41, 49, and citations; Mallinger v. Brussow, 252 Iowa 54, 57, 105 N.W.2d 626, 628. 2) Such amount as will fairly and reasonably compensate for the pain and suffering of decedent during the three hours she survived the accident. Iowa Uniform Jury Instruction 3.9; Fitzgerald v. Hale, 247 Iowa 1194, 1205, 78 N.W.2d 509, 515, overruling prior contrary decisions.

No objection to any instruction was made. Plaintiff's counsel announced there was none. The instructions therefore stand as the law of the case. Neibert v. Stone, 247 Iowa 366, 368, 73 N.W.2d 763, 764, and citations; Mallinger v. Brussow, supra, 252 Iowa 54, 61, 105 N.W.2d 626, 630. We will refer to other applicable legal propositions following an outline of the evidence.

II. Vicki was the second of four children--all girls--born to her parents. She was in her first year at a Lutheran school in Paullina; she was obedient, did her school work well, had an A grade, got along well and was liked by schoolmates, was happy, healthy, prompt, neat, clean and 'real pretty.' She put small coins in a piggy bank the little girls had.

Vickie's father, Waldo, was a trucker, 31 at time of trial in November 1964. He married Ila, Vicki's mother, when she was 16. Each attended school to the eighth grade; this is also true of Waldo's parents. Ila had a cerebral hemorrhage in 1955 which left her with some paralysis and she never fully recovered. She died at 21 in November 1959 when her fourth child was born. Waldo was in the army 23 months, was a corporal when discharged early in 1956. He had worked on farms before his army service. After his army discharge he farmed 160 acres of his grandmother five years. He then started trucking in February 1961.

Waldo received $325 a month for 13 months on his first trucking job. He then changed employers and was paid $80 a week. For the 18 months just preceding trial he drove a truck for a third employer, a Farmers elevator, at $100 a week plus a bonus arrangement of $15 to $17. He had a 1959 Dodge car, 50 hens, six ducks, furniture, appliances and household goods. He estimated his net worth at $3500. He and Ila had saved $2200 when they started farming. Waldo had a life insurance policy for $10,000 on which the premiums were deducted from his wages for the 18 months of his last employment. He did not know its value.

Waldo had total doctor and hospital bills between $6000 and $7000 which he paid except for a $25 doctor bill; Bicki's burial expense of $921 was also unpaid. Ila was confined in an army hospital and a hospital in Cherokee after her 'stroke.' The third child was hospitalized in Sioux City two to two and one-half months. At time of trial Waldo and family occupied, rent free, the dwelling on a farm of his grandmother near Paullina. The buildings would otherwise be unoccupied.

After Ila died Karen Jones, 24 at time of trial, went to take care of the family in August 1960 at the farm they were occupying. Waldo and Karen were married March 13, 1961. Karen's daughter, born out of wedlock, also went to live with Waldo and his little girls. Karen took excellent care of the children. She had quit school in her second year of high school.

Waldo' mother, Lucille, was 50 at time of trial. Her father died when she was a year old. Her mother was still alive at 77. Waldo's father, William, was 51 at time of trial. William's father died from a heart attack at 62. His mother was still alive, also at 77. William and Lucille owned a farm of 160 acres in Iowa and one of 200 acres in Minnesota. Lucille testified, 'I inherited this land from my father--that is, I inherited $3000.' Whether either farm is free from incumbrance and where in Minnesota the one farm is located do not appear.

Ila's father, Clarence (Vicki's maternal grandfather), was 60 at time of trial; Ila's mother, Mable, was 55. Clarence's father died of hardening of the arteries at 69, his mother of cancer at 68. Clarence owned 300 acres of land. Whether it was incumbered does not appear. He testified, 'My father owned land before I did.' His wife said her husband acquired some property from his parents when they died. Mable's father died at 84, her mother at 79. The father owned land at one time but not at his death.

A professor at a small college in Orange City testified he foresees continued rising prices and a depreciating dollar because of heavy expenditures by government, business and consumers. An income of something like $7400 would be needed to match one of $3000 in 1939 and an acre of land would cost more than double its cost in 1939 because the purchasing power of the dollar has declined more than half in that 25-year period.

A retired banker of lang experience said four percent is a safe return on an investment in savings and loan associations, banks and government bonds; first mortgages on farms would pay 5 1/2 percent but are hard to obtain; the low land value in the last 46 years in the area where the parties lived was $150 per acre; no dramatic fluctuation has occurred in the return on safe investments in the last 40 to 45 years.

A certified accountant testified to amounts a dollar, invested at four percent and also at five percent, would equal in given periods. A dollar invested at four percent for 49 years would equal $6.83, at five percent for that time would equal $10.92, at four percent for 63 years would equal $11.83, and at five percent for that time would equal $21.62.

Vicki was severely injured. She suffered a broken shoulder and upper arm, a punctured lung and a basal skull fracture. A salesman lifted her from the highway, carried her into the home and placed her on a bed. She was limp and 'completely out.' An osteopathic physician arrived in a few minutes and examined her 15 to 20 minutes. When he moved her arm Vicki indicated pain. He did not think she 'was injured that severely.'

Vicki was taken some 20 miles by ambulance at high speed to a Cherokee hospital. She arrived about 5:45, apparently unconscious, but regained consciousness in a few minutes. An unconscious person does not suffer pain. Part of the time Vicki was in the hospital she was semiconscious and felt pain although less than if she were conscious.

Vicki's father and stepmother were attending a trucker's convention in Sioux City when the accident occurred. They reached the hospital about 7:15 and saw Vicki briefly. She told her stepmother, 'Mommy, my head hurts.' This was the only coherent statement any witness heard from her. At times she cried out incoherently.

III. Our problem is whether it was an abuse of discretion for the trial court to hold the verdict was excessive as not sustained by sufficient evidence.

'* * * The trial court has broad discretion in granting a new trial conditioned upon a remittitur to a set amount. We will not interfere with its ruling on a motion for new...