Mallinger v. Brussow

• Citation: 105 N.W.2d 626,252 Iowa 54
• Decision Date: 19 October 1960
• Docket Number: No. 50079,50079
• Parties: Anna MALLINGER, Administratrix of the Estate of Joseph E. Mallinger, Deceased, Appellee, v. Richard W. BRUSSOW, Stan Kieme, d/b/a Truck Leasing Company, Jackson, Michigan, and Ace Lines, Inc., Minneapolis, Minnesota, Appellants.
• Court: United States State Supreme Court of Iowa

Page 626

105 N.W.2d 626

252 Iowa 54

Anna MALLINGER, Administratrix of the Estate of Joseph E. Mallinger, Deceased, Appellee, v. Richard W. BRUSSOW, Stan Kieme, d/b/a Truck Leasing Company, Jackson, Michigan, and Ace Lines, Inc., Minneapolis, Minnesota, Appellants.

No. 50079.

Supreme Court of Iowa.

Oct. 19, 1960.

Peters & Peters, Fort Dodge, for appellants.

John H. Mitchell, Fort Dodge, for appellee.

GARFIELD, Justice.

This is a law action by the administratrix of the estate of Joseph E. Mallinger, deceased, to recover actual damages of $151,500 and exemplary damages of $50,000 for his death. Following trial there was a jury verdict of $65,000 actual damages and $5,000 exemplary damages. From judgment thereon for such amounts defendants have appealed.

Defendants are Richard W. Brussow, driver of a tractor-trailer which collided with the farm tractor operated by decedent, together with the owner and lessee of the tractor-trailer. For convenience Brussow may be considered as sole defendant. The tractor-trailer will sometimes be referred to as the truck to avoid confusing it with decedent's farm tractor.

Exemplary damages were sought and allowed on the theory defendant Brussow's conduct was wanton, reckless and grossly negligent.

Defendant asserts the allowance of actual damages is excessive and should be set aside or, in the alternative, a remittitur ordered or new trial granted. It is also asserted exemplary damages are not recoverable in an action like this and, in any event, the evidence does not support an allowance therefor. We consider first the claimed excessiveness of the actual damages allowed.

I. Decedent was 37 and unmarried. The normal life expectancy of one that age is 32.59 years. He was a high school graduate. When his father died in 1939 he took over management and operation, on shares, of the 240-acre farm owned by his mother. He was still farming it when he was killed July 25, 1958. At the father's death there was a mortgage of $26,000 on the farm. Through the son's efforts this was paid off in 1947 or 1948. After this improvements were made on the farm buildings. He left an estate of $48,600 in personal property plus life insurance of $10,000. His adjusted gross income for 1955 was $5,170, for 1956 $2,774, and for 1957 $378.

Decedent was an excellent farmer who worked extremely hard. He was 'a good hog and cattle man' who 'fed out' about 40 head of cattle each year. His sales of livestock in 1957 totaled $13,175. He was a good mechanic who could fix almost anything. He had good farm machinery and kept it in good condition. The farm was an A-1 farm, neat and well kept. His health was good and he was strong and rugged. His habits were good. He was happy and easy to get along with.

There seems to be no dispute about any of these facts. Several witnesses, apparently disinterested, testify to decedent's industry and ability as a farmer and producer of livestock.

The measure of recovery of actual damages for decedent's death is the reasonable present value of his life to his estate. By this is meant the present worth of the estate he would reasonably be expected to save as a result of his efforts between the time of his death and the end of his natural life if he had lived. To this may be added interest on the reasonable funeral expense for such time as it was prematurely incurred. Soreide v. Vilas & Co., 247 Iowa 1139, 1153, 78 N.W.2d 41, 49, and citations. The jury was so instructed here and no complaint is made of the instruction.

It was stipulated the reasonable funeral expense here was $1,464. Also that the value of the farm tractor was $1,000. It seems to be conceded recovery could be had for this last item.

We have frequently pointed out the allowance of damages in a case like this is primarily for the jury and we should not interfere unless it clearly appears the verdict was prompted by passion or prejudice or other ulterior influence, is unconscionable, not warranted by the evidence or the amount allowed fails to administer substantial justice. Hamdorf v. Corrie, 251 Iowa ----, 101 N.W.2d 836, 843, and citations. We should not substitute our judgment for that of the jury. The mere fact we might, if sitting as triers of fact, have reached a lesser award does not justify our interference with the verdict. Ibid.; Von Tersch v. Ahrendsen, 251 Iowa ----, 99 N.W.2d 287, 292.

Many recent decisions point out that comparison of verdicts is not a satisfactory method of determining whether a particular award is excessive--each case must depend largely upon its own facts. Soreide and Hamdorf case, supra, and citations therein; Ferris v. Riley, 251 Iowa ----, 101 N.W.2d 176, 183; Newman v. Blom, 249 Iowa 836, 851, 89 N.W.2d 349, 359, and citations.

'As a general rule we are and should be reluctant to reduce verdicts of juries undisturbed by the best judgment of the trial court who also saw and heard the witnesses.' Newman v. Blom, supra. To like effect is Von Tersch v. Ahrendsen, supra (at page 292 of 99 N.W.2d).

The award of $65,000 actual damages is the largest ever to come to us in a death case. Highest previous death award was $50,000 in Soreide v. Vilas & Co., supra (1956). We reduced that amount to $37,500. Defendant's counsel conceded in oral argument that plaintiff was probably entitled to more than the amount finally allowed Soreide's administratrix but said a remittitur should be ordered of part of the $65,000.

In computing the present worth of the future estate decedent would reasonably be expected to accumulate, the jury was not compelled to assume the amount now allowed could be safely invested at the so-called legal rate of five per cent throughout the period he probably would have lived. It might properly conclude such a rate would not be obtainable from safe investments, at least without exercise of financial experience and skill. It is common knowledge that as a rule the best and safest investments, and those which require the least care, yield only a moderate return. Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 490-491, 36 S.Ct. 630, 60 L.Ed. 1117, 1122, L.R.A.1917F, 367; Louisville & N. R. Co. v. Holloway, 246 U.S. 525, 528, 38 S.Ct. 379, 62 L.Ed. 867, 870; Southern Pacific Co. v. Klinge, 10 Cir., 65 F.2d 85, 87. See also Von Tersch v. Ahrendsen, supra, 251 Iowa ----, 99 N.W.2d 287, 291; Thoirs v. Pounsford, 210 Minn. 462, 299 N.W. 16, 19; Miller v. Tainter, 252 Wis. 266, 31 N.W.2d 531, 532-533; Annotations, 105 A.L.R. 234, 14 A.L.R.2d 485, 542.

Defendant's brief states the rule much as we have just expressed it. It says the loss to the estate is reduced to its present value by determining the sum which, if conservatively invested at compound interest, would equal the amount decedent would have accumulated during the remainder of his life.

There is some disagreement among the authorities as to whether, in computing present worth, simple or compound interest is used. Rivers v. Bay Cities Traction & Elec. Co., 164 Mich. 696, 128 N.W. 254, 259, 131 N.W. 86, 87. In most states the interest is compounded. Annotation, 14 A.L.R.2d 485, 542. No previous decision of ours upon this precise point has come to our attention.

If there is deducted from the allowance of $65,000 the value of the tractor and interest on the funeral expense for such time as it was prematurely incurred, the rest of the amount, invested at three per cent interest, compounded annually, would approximate $165,000 after 32.59 years. Compounded at four per cent it would approximate $225,000 at the end of such period. It is apparent that if only simple interest were used, the amount would be very much smaller.

We do not say the jury was bound to arrive at the actual damages by any such mathematical calculation. See 25 C.J.S. Death § 100, p. 1242; Thoirs v. Pounsford, supra, 210 Minn. 462, 299 N.W. 16, 19; Jacobsen v. Poland, 163 Neb. 590, 80 N.W.2d 891, 904-905. We have frequently pointed out that the award of damages for wrongful death is necessarily at least somewhat of an approximation.

We are not persuaded we should interfere with the jury's award of actual damages, although it is very large. There is no showing it was the result of passion or prejudice unless this might possibly be inferred from the amount itself. Nor can we say the amount is unconscionable, not warranted by the evidence or fails to administer substantial justice.

Within eight or nine years after his father died decedent succeeded in paying off the mortgage of $26,000 on the farm. In his remaining 10 or 11 years he accumulated an estate of some $48,000 aside from life insurance. Under the evidence it is not at all improbable he would have accumulated from $165,000 to $225,000 between the time of his death and the end of his natural life. To interfere with the amount of this verdict for actual damages would be to substitute our judgment for that of the jury, something we have repeatedly said we will not do.

The record in Soreide v. Vilas & Co., supra, 247 Iowa 1139, 1152, 78 N.W.2d 41, 49, is not comparable to the present record on the amount of actual damage. Although the normal life expectancy of a person of Soreide's age was 35.15 years, he had accumulated only his household furniture, a seven-year-old automobile and savings of $1,115.

II. Defendant's contention that exemplary damages are not recoverable in an action like this is supported by statements in several of our precedents. DeMoss v. Walker, 242 Iowa 911, 915, 48 N.W.2d 811, 813-814; Boyle v. Bornholtz, 224 Iowa 90, 93-94, 275 N.W. 479; Armbruster v. Chicago, R. I. & P. R. Co., 166 Iowa 155, 163, 147 N.W. 337.

Plaintiff contends these decisions are irreconcilable with the holding and reasoning in Fitzgerald v. Hale, 247 Iowa 1194 78 N.W.2d 509, and are not now authoritative. The holding there was that the executrix of a decedent could recover, in an action commenced after death, for pain and suffering incurred prior thereto. The opinion points out that...