Kogul v. Sonheim

• Decision Date: 18 June 1962
• Docket Number: No. 19664,19664
• Citation: 150 Colo. 316,372 P.2d 731
• Parties: Van W. KOGUL and Helen Kogul, Plaintiffs in Error, v. F. J. SONHEIM, H. W. Sonheim and Dorothy F. Erika, Defendants in Error.
• Court: Colorado Supreme Court

Page 731

372 P.2d 731

150 Colo. 316

Van W. KOGUL and Helen Kogul, Plaintiffs in Error, v. F. J. SONHEIM, H. W. Sonheim and Dorothy F. Erika Defendants in Error.

No. 19664.

Supreme Court of Colorado, En Banc.

June 18, 1962.

Rehearing Denied July 9, 1962.

Dawkins & Berman, Denver, for plaintiffs in error.

Wood, Ris & Hames, Stephen E. Connor, Denver, for defendants in error.

SUTTON, Justice.

This is a wrongful death action under C.R.S. '53, 41-1-1 et seq. (as amended), brought by the parents of a three year old child. The parties appear here in the same order as in the trial court and will be referred to accordingly. The only issues in the case concern the proper amount and measure of damages.

Defendants, husband and wife and their twenty-four year old daughter, owned and possessed property located at 2901 South Corona Street in Englewood, Colorado. On August 3, 1959, defendant Mr. Sonheim brought from work an electric spot welder weighing approximately 240 pounds and temporarily stored it in his backyard near a fence adjoining a sidewalk. On August 4, 1959, at approximately 10:30 A.M. the decedent child was found dead beneath the spot welder, the cause of death being a cracked skull and multiple internal injuries suffered as a result of the spot welder falling on him. Plaintiffs, the parents of the child, then sued defendants for $25,000.00 for the negligent death of their child on the theory of attractive nuisance. Defendants denied negligence and alleged unavoidable accident. Following the introduction of evidence the court dismissed the action against the defendants wife and daughter. The jury returned a verdict in favor of plaintiffs against the defendant husband for $700.00, upon which judgment was entered. Motion for a new trial was dispensed with.

Upon submitting the case the court instructed the jury to the effect that if it found for plaintiffs, the damages must be limited to the net pecuniary loss sustained by plaintiffs by reason of the child's death. The court then instructed that 'the net pecuniary or monetary loss, if any, sustained by the plaintiffs by reason of the loss of their son is equivalent to the pecuniary or monetary benefits, if any, which the plaintiffs might reasonably have expected to receive from the continuation of his life less the cost of properly and suitably maintaining and educating him.' Plaintiffs excepted to this instruction and tendered an alternative instruction which was refused.

By writ of error plaintiffs seek a new trial solely on the issue of damages. They urge that: (1) the damages awarded by the jury were grossly and manifestly inadequate; and (2) in wrongful death actions of this type the measure of damages should not be the net pecuniary loss sustained by the parents but rather the replacement value of the child as measured by the cost of infantile hospitalization and care, clothing, support and education up to the time of the child's death.

Plaintiffs must fail on both grounds. While we recognize that money damages in any amount can never compensate bereaved parents for the loss of a child, yet we must adhere to the rule that parental grief is not an element of damages in wrongful death actions under the statute. E. G. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). The jury in this case had the benefit of extensive testimony and evidence, and it was its peculiar province to estimate and assess the damages. E. G. Colorado Springs and Interurban Railroad Company v. Kelley, 65 Colo. 246, 176 P. 307 (1918); Lehrer v. Lorenzen et al., 124 Colo. 17, 233 P.2d 382 (1951). In Lehrer, supra, we expressly set forth the standard for setting aside a money verdict on grounds of inadequacy in the following language:

'* * * [W]e hold it to be an abuse of discretion on the part of the court to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations.' 124 Colo. at 20-21, 223 P.2d at 383.

We find nothing in this record to justify setting aside the verdict here on any of these grounds.

Since the case of Pierce, supra, this court has continually adhered to the net pecuniary loss rule in determining the amount of damages in wrongful death cases. Any change in the law as to the measure of damages allowed for the wrongful death of a child in our view should only come by proper legislative action and not through judicial legislation. In spite of at least two courts in other jurisdictions having discarded this theory in recent times [e. g. Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, (1960) and Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355] we have but recently approved both the rule and the Pierce case in Herbertson v. Russell, Colo., 371 P.2d 422, and no good purpose would be served by an extended discussion here.

The judgment is accordingly affirmed.

MOORE, J., specially concurring.

FRANTZ, J., and HALL, J., dissenting.

MOORE, Justice (specially concurring).

Arguments advanced by counsel for plaintiff in error and comments in the dissenting opinion of Mr. Justice Frantz constrain me to file this specially concurring opinion.

It is freely admitted that by numerous opinions of this court in this jurisdiction, it has been firmly established that net pecuniary loss is the measure of damages in an action for wrongful death. Such action may be brought only by those persons upon whom the right has been conferred by statute.

It is asserted that this rule is 'discordant with the word and spirit of the Constitution of this state.' Article II, Sec. 3, of that instrument is the only provision mentioned which, it is asserted, should impel us to repudiate the many opinions of this court which have announced the rule. An examination of this constitutional provision will very quickly expose the fallacy of the argument. It provides in pertinent part that:

'All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties * * *.' (Emphasis supplied)

Constitutional guarantees have never operated to confer upon any person a claimed 'right' which has never been recognized under any concept of law. The above-quoted language does not give a constitutional right to such person to 'enjoy' the life of another. By the express provisions of the constitution the right of 'enjoying and defending their lives and liberties' is the constitutionally protected right of the individual whose own life and liberty is involved.

The foundation of the 'right' to bring an action for damages for the wrongful death of another is laid in the statute (C.R.S. '53, 41-1-2). Prior to its adoption such 'right' was nonexistent. Under this statute it has consistently been held that the measure of damages is the reasonably expected net pecuniary benefit to the prescribed survivors had the deceased lived, 'but not a solatium for grief of the living.' An early case upholding this rule was announced in 1894, namely, Pierce v. Conners, 20 Colo. 178, 37 P. 721. This rule has been adhered to by this court in numerous cases for over sixty-five years. Recent decisions are Rigot v. Conda, 134 Colo. 375, 304 P.2d 629; Lehrer v. Lorenzen et al., 124 Colo. 17, 233 P.2d 382; and Bates v. Ward, 142 Colo. 125, 349 P.2d 991. In the Bates case Mr. Justice Frantz concurred in upholding the 'net pecuniary loss' rule.

On several occasions since the original statute was interpreted by this court to limit recovery to 'net pecuniary loss' the statute has been amended by legislative action. But the rule of 'net pecuniary loss' as the measure of damages has not been changed although several attempts to accomplish that result have failed in the General Assembly.

The reference to Article II, Section 3 of the constitution has no pertinence to the issues. Other sections of the constitution are clearly applicable. They are basic and fundamental. Article III thereof divides governmental power into three departments and admonishes each that no '* * * persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, * * *.'

This court is frequently called upon to curb and invalidate the actions of officials who purport to act in a manner beyond the powers which they possess under the constitution and the limitations imposed upon their authority. We should be equally willing to give recognition to, and obey, the mandates of the constitution which place definite limitations upon the power of the judiciary. As stated by Mr. Justice Sutton in the opinion of the court, such a radical change in the long-established construction of this statute is a matter for consideration by the legislature. To accomplish that result by judicial fiat, as I view the matter, would be a repudiation of one of the most basic concepts of our way of life, and would amount to a declaration that the judiciary recognizes no limitations upon its power to change the law to correspond to what the individual members of the court may, from time to time, believe the law should be. If, upon every change in the personnel of this court, we were to bend or reshape the law to confirm to the philosophical views of the judges who currently occupy the bench, we would destroy all...