Krouse v. Graham

Citation19 Cal.3d 59,137 Cal.Rptr. 863
CourtUnited States State Supreme Court (California)
Decision Date14 March 1977
Parties, 562 P.2d 1022 Benjamin Clifford KROUSE et al., Plaintiffs and Respondents, v. Homer Adams GRAHAM, Defendant and Appelland. L.A. 30639.

Murchison, Cumming, Baker & Velpmen, Los Angeles, Edward L. Lascher, Ventura, and John W. Baker, Los Angeles, for defendant and appellant.

Harney & Moore and David M. Harney, Los Angeles, for plaintiffs and respondents.

Richard P. Nahrwold, Los Angeles, as amicus curiae on behalf of plaintiffs and respondents.


In this case we consider, among other issues, various questions regarding the nature and extent of damages properly recoverable in a wrongful death action. As to certain parties we have concluded that prejudicially erroneous jury instructions necessitate reversal of a judgment in favor of plaintiffs. In connection with defendant's motion for new trial, we examine a claim of certain jury misconduct, and will direct the trial court to reconsider that motion as it affects one of the verdicts.

Multiple plaintiffs--Benjamin Krouse, the five Krouse children and Vinka Mladinov--brought this action for personal injuries, emotional suffering, and wrongful death against defendant, the driver of an automobile which was being operated in the City of Burbank and struck the Krouses' parked car, killing Elizabeth Krouse and injuring her husband, Benjamin, and Mladinov, their neighbor. Immediately prior to the collision, the Krouse automobile had been parked at the curb in front of Mladinov's house. While Benjamin remained in the driver's seat, his wife, Elizabeth, and Mladinov removed groceries from the back seat of the car. When Elizabeth and Mladinov returned to the curb and commenced to shut the car door, defendant's vehicle approached the rear of the Krouse vehicle, straddled the curb, and struck both women before colliding with the rear of the parked car. The force of the impact propelled the Krouse vehicle 70 feet forward, threw Mladinov approximately 20 feet into an embankment, and hurled Elizabeth under defendant's vehicle.

Defendant admitted liability, and the trial of the case was limited to the issue of damages. The evidence and instructions to the jury concerned various theories of recovery for the respective plaintiffs, including (1) wrongful death damages for Benjamin Krouse and the five Krouse children, (2) damages for the physical and emotional injuries sustained by Benjamin, and (3) damages for the physical injuries suffered by Mladinov.

The jury returned three separate verdicts for plaintiffs in the aggregate sum of $442,000. Benjamin and the Krouse children were awarded $300,000 in a lump sum for Elizabeth's wrongful death, to be divided by the trial court between these plaintiffs. Benjamin was also awarded $52,000 for his personal injuries and emotional suffering. Mladinov was awarded $90,000 for her personal injuries. The court denied defendant's motion for new trial, which motion was supported by jurors' declarations regarding certain alleged jury misconduct.

Defendant appeals, asserting that the trial court erred in (1) instructing the jury that Benjamin could recover wrongful death damages for loss of his wife's 'love, companionship, comfort, affection, society, solace or moral support (and) any loss of enjoyment of sexual relations . . .,' (2) instructing the jury that the Krouse plaintiffs could recover wrongful death damages for 'mental and emotional distress,' (3) instructing the jury that Benja min could recover for his physical and emotional injuries incurred by reason of his mere presence at the accident scene, (4) admitting assertedly inflammatory photographs and testimony regarding the accident scene, and (5) denying defendant's motion for new trial.

We examine defendant's claims, combining in one section his first two contentions, both pertaining to the wrongful death instructions.

1. The Wrongful Death Verdict

The Krouse plaintiffs introduced extensive evidence showing that Elizabeth was a warm and devoted mother. At the time of her death she was 56 years old, had been healthy, and was an active homemaker who had recently retired as a legal secretary in order to care for her husband, Benjamin, whose condition of emphysema, in turn, caused him to retire and necessitated considerable nursing services. Elizabeth had the primary responsibility for maintaining the family home and garden and for attending to a minor son who resided at home. Trial testimony indicated that the minor son was totally dependent upon Elizabeth for the comforts and conveniences usually afforded by a mother to a youth of his age. The evidence also disclosed a high degree of family socializing, including Elizabeth's care of her grandchildren.

a) Award of 'Nonpecuniary' Damages to Benjamin. The jury was instructed that Benjamin could recover 'reasonable compensation' for the loss of his wife's 'love, companionship, comfort, affection, society, solace or moral support, any loss of enjoyment of sexual relations, or any loss of her physical assistance in the operation or maintenance of the home' Subsequent instructions, not challenged on appeal by defendant, further advised the jury that the Krouse plaintiffs could recover 'just compensation for the pecuniary loss' each of them suffered by reason of Elizabeth's death, including 'the pecuniary value of the society, comfort, protection, and right to receive support, if any,' which plaintiffs may have lost by reason of her death.

Defendant asserts that the initial instruction improperly allowed Benjamin to recover damages for 'nonpecuniary' losses. As we explain below, however, for the past century California courts have uniformly allowed wrongful death recovery for loss of the society, comfort, care and protection afforded by the decedent, despite the courts' insistence that only 'pecuniary' losses are compensable. Accordingly, the challenged instruction listing comparable nonpecuniary losses was not erroneous.

The statutory cause of action for wrongful death, created in California in 1862, provided that 'pecuniary or exemplary' damages were to be awarded by the jury in the amount found 'just' under all the circumstances. (Stats.1862, p. 447.) Ten years after its enactment, the statute was amended to remove the words 'pecuniary or exemplary,' retaining the language that 'damages may be given as under all the circumstances of the case, may be just, . . .' (Code Civ.Proc., § 377.) Nonetheless, in subsequent decisional law a theory developed that damages for wrongful death were recoverable only for the 'pecuniary' losses suffered by the decedent's heirs. (E.g., Hale v. San Bernardino, etc., Co. (1909) 156 Cal. 713, 716, 106 P. 83; Valente v. Sierra Railway Co. (1910) 158 Cal. 412, 418--419, 111 P. 95; Parsons v. Easton (1921) 184 Cal. 764, 770, 195 P. 419; Gilmore v. Los Angeles Ry. Corp. (1930) 211 Cal. 192, 201, 295 P. 41; Ure v. Maggio Bros. Co., Inc. (1938) 24 Cal.App.2d 490, 491, 75 P.2d 534; Syah v. Johnson (1966) 247 Cal.App.2d 534, 546, 55 Cal.Rptr. 741; Fields v. Riley (1969) 1 Cal.App.3d 308, 313, 81 Cal.Rptr. 671.)

California case law, however, has not restricted wrongful death recovery only to those elements with an ascertainable economic value, such as loss of household services or earning capacity. On the contrary, as early as 1911, we held that damages could be recovered for the loss of a decedent's 'society, comfort and protection' (Bond v. United Railroads (1911) 159 Cal. 270, 286, 113 P. 366), though only the 'pecuniary value' of these losses was held to be a proper element of recovery. Other cases have held admissible such evidence as the closeness of the family unit (Griott v. Gamblin (1961) 194 Cal.App.2d 577, 578--579, 15 Cal.Rptr. 228), the warmth of feeling between family members (Benwell v. Dean (1967) 249 Cal.App.2d 345, 349, 57 Cal.Rptr. 394), and the character of the deceased as 'kind and attentive' or 'kind and loving' (Cook v. Clay Street Hill R.R. Co. (1882) 60 Cal. 604, 609). Not only was wrongful death compensation awarded historically to heirs who had been financially dependent upon their deceased relatives, but adult children received substantial awards for the wrongful death of retired, elderly parents (e.g., Griott v. Gamblin, supra) and parents received compensatory damages for the death of young children (e.g., Parsons v. Easton, supra, 184 Cal. 764, 195 P. 419; Daggett v. Atchison, T. & S.F. Ry. Co. (1957) 48 Cal.2d 655, 666, 313 P.2d 557). These cases suggest a realization that if damages truly were limited to 'pecuniary' loss, recovery frequently would be barred by the heirs' inability to prove such loss. The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial 'injury' to the family for which just compensation should be paid.

Two earlier opinions discussing the loss of society, comfort, care and protection, disclose the rationale underlying the 'pecuniary value' limitation. In Bond v. United Railroads, supra, 159 Cal. 270, 113 P. 366, we explained: 'The rule that allowance may be made for pecuniary loss from deprivation of society, comfort, and protection of a son is apparently settled and cannot now be disturbed. It is evident to us, however, from the cases that have come before us, that it often leads to extravagant verdicts in which the jury, in fact, allow a supposed compensation For sad emotions and injured feelings, instead of confining their verdict to the actual pecuniary loss. . . . Juries should be insistently cautioned not to allow compensation for the sorrow and distress which always ensues from such a death, . . .' (Pp. 285--286, 113 P. p. 372, italics added). A similar concern was echoed in Ure v. Maggio Bros. Co., Inc., supra, 24 Cal.App.2d 490, 75 P.2d 534, in...

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