Jones v. Carvell

• Decision Date: 06 January 1982
• Docket Number: No. 16753,16753
• Citation: 641 P.2d 105
• Parties: Linda S. JONES, Plaintiff and Appellant, v. Paul Michael CARVELL, Defendant and Respondent.
• Court: Utah Supreme Court

Page 105

641 P.2d 105

Linda S. JONES, Plaintiff and Appellant, v. Paul Michael CARVELL, Defendant and Respondent.

No. 16753.

Supreme Court of Utah.

Jan. 6, 1982.

M. Dayle Jeffs, Provo, for plaintiff and appellant.

Don R. Petersen, Provo, for defendant and respondent.

STEWART, Justice:

Plaintiff, Linda S. Jones, appeals from a judgment entered on a jury verdict awarding her $10,000 for the wrongful death of her five-year old son, Peter John Carvell, and from the district court's denial of her motion for new trial or in the alternative for an additur. Plaintiff also urges on appeal that the trial court erred in refusing to instruct the jury that damages could be based, in part, on the cost of raising a child to the age of its death and for the amount of money that the mother could have earned had she not remained at home to rear the child. In addition, she contends that the court erred in excluding testimony tending to establish her inability to bear additional children and evidence of Carvell's willful misconduct and intoxication, that defense counsel's closing argument was improper because it went beyond the issues and outside the record.

Plaintiff's five-year old son was killed while riding as a passenger in a car driven by defendant, Paul Michael Carvell, the decedent's uncle. Prior to trial, Carvell admitted liability. The sole issue litigated was that of damages, and Linda Jones was the only witness. The jury found Jones' damages for the wrongful death of her son to be $9,165.62 general damages, and $834.38 for funeral expenses.

Utah's wrongful death statute, like most other states', was patterned after Lord Campbell's Act enacted in England in 1846. Fatal Accidents Act, 9 & 10 Vict., c. 93 (1846). It was designed to uproot what to us is the shockingly harsh common law rule that "in a civil court, the death of a human being could not be complained of as an injury," Baker v. Bolton, 1 Campb. 493, 170 Eng.Rep. 33 (Nisi Prius 1808). English law, however, had not always taken that position. The accidental killing of a human being was a compensible wrong even before the Norman Conquest. Pollock & Maitland, History of English Law, i, 48.

The English courts interpreted Lord Campbell's Act to provide for the recovery of "such damages as (the jury) may think proportioned to the injury resulting from such death." Basically, that was construed to mean that only pecuniary, that is, out-of-pocket damages, could be recovered. In cases of the wrongful death of a child, the English courts, at a time when young children labored in the mines and mills of England for the benefit of their parents, interpreted that language restrictively to allow damages only for the amount of money which the child as a result of its labor, less its own expenses and upkeep, would have contributed to the parents. Blake v. Midland Ry., 18 QB 93, 118 Eng.Rep. 35, 42-43 (Q.B.1852).

Various efforts were made by some courts to mitigate the harshness of the rule, especially as conditions changed and children generally ceased to be viewed primarily as producers of wealth, but a number of states in the United States followed the old English pattern and limited recovery to the decedent's expected earnings less living expenses. E.g., Hanks v. Norfolk & Western Ry. Co., 230 N.C. 179, 52 S.E.2d 717 (1949); Stratton v. Sioux Falls Traction System, 55 S.D. 464, 226 N.W. 644 (1929). Annot., Damages for Infant's Death, 149 A.L.R. 234 (1944). See also Prosser, Handbook of the Law of Torts, 905 (4th ed. 1971).

A wrongful death cause of action was established by the Utah Territorial Legislature in 1874, Ch. 11 (1874) Laws of Territory of Utah 9, II Compiled Laws of Utah § 2961 (1888). The present standard for the determination of damages was enacted in 1884. Laws of the Territory of Utah, Title III, §§ 233, 234; II Compiled Laws of Utah, §§ 3178, 3179 (1888). Indeed, the matter was of such importance at the time of statehood given the general uncertainty of the law, at least in other states, that the framers of the Utah Constitution provided for a judicial remedy by Article XVI, § 5 of the Constitution which states that a "right of action to recover for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation ..."

Under present statutory law, the right to sue for the wrongful death of a child is established by Utah Code Ann., 1953, § 78-11-6, and Section 78-11-7, which addresses the nature of recoverable damages and provides that "such damages may be given under all the circumstances of the case as may be just." Unlike wrongful statutes in some other states, Utah statutory law does not limit damages to economic or "pecuniary" losses resulting from a child's death.

Under Utah law a parent may recover for the wrongful death of a child such damages as funeral and medical expenses, cf. Ottley v. Hill, 21 Utah 2d 396, 446 P.2d 301 (1968), the value of the services he might have rendered to the household, and the amount of money the deceased child might have earned, if its projected income would have exceeded the cost of its maintenance and care. However, damages are not limited to such losses. Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244 (1946), ¹ and this jurisdiction has emphasized from the beginning that the greatest losses arising from the wrongful death of a child are not those losses which are economic in nature. It is the loss of society, love, companionship, protection and affection which usually constitute the heart of the action. Van Cleave v. Lynch, supra; Evans v. Oregon Shortline Railroad Co., 37 Utah 431, 439-440, 108 P. 638, 641 (1910); Corbett v. Oregon Short Line Railroad Co., 25 Utah 449, 71 P. 1065 (1903). Stated somewhat differently, this Court has stated that recovery may be had for "the loss of affection, counsel and advice, the loss of deceased's care and solicitude for the welfare of his or her family and the loss of the comfort and pleasure the family of deceased would have received ..." In re Behm's Estate, 117 Utah 151, 159, 213 P.2d 657, 661, 40 A.L.R.2d 490, 496 (1950). See also Beaman v. Martha Washington Mining Co., 23 Utah 139, 149, 63 P. 631, 632 (1901). Such damages are not limited to the period during which the deceased would have been a minor. Id. at 149, 63 P. at 633.

To assign a monetary value to loss of comfort, society, love, companionship, advice, and protection in some realistic manner, the trier of fact may consider factors relating to the physical, emotional, and psychological relationship, between the deceased and those entitled to recover, including the kindly demeanor between members of a family. Pool v. Southern Pacific Co., 7 Utah 303, 26 P. 654 (1891). Cf. Annot., Measure of Damages for Wrongful Death of Child Under Federal Tort Claims Act, 25 A.L.R.Fed. 179 (1975).

Concededly, such losses are difficult to quantify and impossible to fit into a mathematical formula which translates them in any precise fashion into monetary values. But the alternatives raise an even more serious problem. To say that the law recognizes no loss for intangible injuries resulting from a wrongful death is repugnant to basic human values and flouts basic principles of justice. On the other hand, the law does not permit unfettered discretion in awarding damages. Experience demonstrates that juries and judges are able to translate the loss of a child's life into monetary values in a manner which has been generally accepted as reasonable and has avoided grossly disparate damage awards. To be sure, the making of such judgments is not easy and requires great understanding of those human values which can make interpersonal relationships so precious. Yet, the process, difficult as it is, must be tempered and confined so as to strike a just balance. The process is not unique to wrongful death cases.

In this case, plaintiff contends Utah law is too restrictive because it does not permit recovery of all damages actually suffered. Her claim is that she should be recompensed for the cost of rearing her deceased child to the age it had obtained at the time of death. This she calls the "investment theory of damages." In support thereof, she sought to introduce evidence of the average cost of raising a child to the age of five years and one month. She also claims she is entitled to damages based on the "lost opportunity cost" theory of recovery, i.e., the income she lost by devoting her full time to the rearing of her deceased child rather than entering the work force.

As authority for the "investment theory" of damages, plaintiff relies on Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960). In Wycko the controlling Michigan wrongful death statute authorized recovery of damages in a wrongful death action which were "fair and just, with reference to the pecuniary injury resulting from such death ..." Mich.Comp. Laws § 691.581 (1948) (emphasis added). The Michigan Court, in a long line of cases, had restrictively construed that provision to require, essentially, proof of an economic, as opposed to psychological and other non-out-of-pocket losses resulting from the death of a child. Thus the death of a child was measured by the child's "probable wages less the cost of his keep," i.e., what has been termed the "child-labor" standard. ² 361 Mich. at 338, 105 N.W.2d at 122.

The Michigan court held that the loss of companionship and society was a "pecuniary loss" as that term was used in the Michigan statute. To arrive at that conclusion, the Court employed a standard for calculating the loss which was based largely on values recognizable in the marketplace. The Court analogized a child to a manufacturing plant or industrial machine whose value includes the cost of acquisition, upkeep, maintenance, repair and renovation. On that basis, the court held that the value of the life of a child could be calculated, at least in part, by the expenses of birth, food,...