Miller v. Mayberry

• Decision Date: 08 April 1987
• Docket Number: No. 49S02-8704-CV-364,49S02-8704-CV-364
• Citation: 506 N.E.2d 7
• Parties: Don H. MILLER, Indiana Insurance Commissioner, Appellant (Defendant below), v. Richard Eugene MAYBERRY and Doris Mayberry, Individually and as Personal Representatives of the Estate of Richard Eugene Mayberry, II, Appellees (Claimants Below), Michael Wheeler, M.D., Inc., Gibralter Insurance Company, Winona Memorial Hospital, and the Hartford Insurance Company, Defendants Below.
• Court: Indiana Supreme Court

Page 7

506 N.E.2d 7

Don H. MILLER, Indiana Insurance Commissioner, Appellant (Defendant below), v. Richard Eugene MAYBERRY and Doris Mayberry, Individually and as Personal Representatives of the Estate of Richard Eugene Mayberry, II, Appellees (Claimants Below) Michael Wheeler, M.D., Inc., Gibralter Insurance Company Winona Memorial Hospital, and the Hartford Insurance Company, Defendants Below.

No. 49S02-8704-CV-364.

Supreme Court of Indiana.

April 8, 1987.

Linley E. Pearson, Atty. Gen., Alfred K.B. Tsang, Frederick S. Bremer, Deputy Attys. Gen., Indianapolis, for appellant.

Craig Pinkus, Mitchell Hurst Pinkus, Jacobs & Dick, Indianapolis, for appellees.

Michael A. Bergin, Locke Reynolds Boyd & Weisell, Indianapolis, for brief of amicus curiae Ins. Institute of Indiana, Inc.

PIVARNIK, Justice.

This cause comes to us on a civil petition to transfer from the Second District Court of Appeals. This is the second time this cause has been decided by the Court of Appeals and the second time transfer has been sought to this Court.

The facts show Ritchie Mayberry, age seventeen (17) months, was struck by an automobile on May 18, 1981. He was taken to Winona Memorial Hospital where he was examined by Dr. Wheeler and released. Dr. Wheeler examined Ritchie, inspected the X-rays taken, and informed Ritchie's parents that Richie was fine. The following morning, Ritchie was found unconscious and his parents rushed him to Methodist Hospital where he soon died as a result of internal bleeding caused by pelvic fractures sustained in the accident the previous day. These injuries were not detected during the examination at Winona Hospital.

The Mayberrys instituted a malpractice cause of action against Dr. Wheeler, Winona Memorial Hospital, and Midwest Medical Management, Inc. The parties eventually negotiated a settlement and the defendants paid the Mayberrys the sum of $132,612. Thereafter, the Mayberrys filed their petition for damages to be paid from the Patient's Compensation Fund pursuant to Ind.Code Sec. 16-9.5-4-3 (Burns 1983 Repl.). Indiana Insurance Commissioner Don H. Miller was named as a defendant. The trial court awarded the Mayberrys an additional $367,388 in compensatory damages but denied their request for punitive damages. Commissioner Miller appealed. The Court of Appeals reversed this award, finding the trial court improperly awarded damages for loss of love and affection, which, under Indiana law, are not compensable items in an action for the wrongful death of a minor child. The Court of Appeals remanded the cause to the trial court for reconsideration of damages. Miller v. Mayberry (1984), Ind.App., 462 N.E.2d 1316. The Mayberrys' Petition to Transfer to this Court was denied.

Upon remand, the trial court revised its findings but awarded the identical amount of damages, $367,388, to the Mayberrys. Commissioner Miller again appealed to the Court of Appeals, claiming the trial court had improperly assessed damages. The Court of Appeals again found that the trial court had improperly awarded the Mayberrys damages for loss of love and affection. The Court of Appeals found that, upon remand, the trial court simply deleted the findings which constituted the improper consideration of loss of love and affection, and, without additional findings, reassessed damages at the identical amount previously awarded. The Court of Appeals again reversed the trial court and remanded the cause for redetermination of damages in accordance with the pecuniary loss rule. Miller v. Mayberry (1986), Ind.App., 488 N.E.2d 1164.

Mayberrys' Petition to Transfer asks us to reverse the Court of Appeals and affirm the trial court's redetermination of damages. We now hold the pecuniary loss rule is the law in Indiana and agree with the conclusions of the Court of Appeals. We nevertheless feel the issue needs clarification by this Court and, accordingly, grant transfer and vacate the opinion of the Court of Appeals.

The pecuniary loss rule, as an element of damages for a parent suing for the injury or death of a minor child, was recognized by this Court from the time the right was first established by the Legislature. The rule is based on our interpretation of the legislative enactments from the very first statute, 1 Ind.Rev.Stat. (1852), Ch. 88, approved on May 11, 1852, and has continued to be the law to this day. The Legislature has not changed its position on the pecuniary loss rule, even though it had full knowledge of this Court's interpretations of its enactments and in spite of the fact that efforts have been made to provide for a change in the measure of damages awarded to parents for the loss of a minor child.

At common law, a cause of action abated upon the death of a party. The first statutory modification of this rule, Ind.Revised Laws of 1824, had specific provisions dealing with the abatement of actions by death of a plaintiff (Ch. 74, Sec. 52), or death of a defendant (Ch. 74, Sec. 53), but allowed revival of actions by an administrator if the action was the kind which survived or could be brought initially by an administrator. In the Revised Laws of 1831 and Revised Statutes of 1838 and 1843, similar provisions for abatement and revival of actions upon the death of a plaintiff or a defendant were enacted, but those enactments likewise did not provide for a right of action for the wrongful death of another. Ind.Rev.Laws 1831, Ch. 78, Secs. 53, 54, 55; Ind.Rev.Statute (1838) Ch. 81, Secs. 54, 55; Ind.Rev.Stat. (1843) Ch. 40, Secs. 72-100. The Legislature first authorized an action for wrongful death in 1852, following the adoption of our present Constitution in 1851. 1 Ind.Rev.Stat. (1852), Ch. 88. This act provided for a cause of action only against railroads. Thirty-eight days after that Act was adopted by the Legislature, on June 18, 1852, the Legislature adopted 2 Ind.Rev.Stat., Ch. 1, Art. 3, Sec. 27, and Ch. 47, Art. 46, Sec. 784. These acts provided for a wrongful death remedy of a more comprehensive nature, not just as against railroads. These early acts were the forerunners of our wrongful death act and death of a minor child act. In Peru and Indianapolis Railroad v. Bradshaw (1855) 6 Ind. 146, this Court held the general, more comprehensive acts repealed by implication the former one aimed only at railroads as defendants. Id. at 148.

The first time the issue of damages for the loss of a minor child was addressed by this Court was in Ohio and Mississippi Railroad Company v. Tindall (1859), 13 Ind. 366. A widowed mother of an unemancipated minor sought to recover damages for the loss of her son killed through negligence of the railroad. The child lived with and contributed his wages to the support of his mother. The trial court instructed the jury that in estimating damages, it might consider the actual pecuniary loss to the mother occasioned by the death of the son and servant, and also such other circumstances as have injuriously affected the mother in person and in peace of mind and in happiness. Id. at 370. The Court determined that damages were to be limited to only those losses on which there could be placed a pecuniary value. Id. The Court stated: "In a late case very similar to the one now before us, the authorities on this point are collected and reviewed, and the following rule deduced by the Supreme Court of Pennsylvania." Id. at 370. The Court then quoted with approval from Pennsylvania Railroad Company v. Zebe, 33 Pa.St. (9 Casey) 318:

" 'From the authorities and reasons given, the jury, instead of the unrestrained license given them in the charge, in the assessment of damages, should have been instructed that if the plaintiffs were entitled to recover, it was for the damage done in producing the death of their son, and this was to be estimated by the pecuniary value to them of his services during his minority, together with expenses of care and attention to the deceased, arising out of injury, funeral expenses, and medical services, if any.' 'In making the estimate of the value of the life, and consequent damage by the death, much is still left to the sound discretion of the jury. Whatever is susceptible of pecuniary estimate, is included within it, and what we have seen was not to be included must be excluded.' "

Tindall at 370. The Court also adopted with approval the conclusion of the Pennsylvania Court in speaking of damages for mental anguish: "No money could be the measure of the affliction." Tindall, supra at 370, citing Zebe, supra.

In Mayhew v. Burns (1885), 103 Ind. 328, 2 N.E. 793, this Court found the two statutes under consideration here, introduced into our system principles wholly foreign and unknown to the common law. Id. at 335, 2 N.E. at 797. Sec. 27 of the Code of 1852; currently Ind.Code Sec. 34-1-1-8 (Burns 1975), was interpreted to create an independent cause of action personal to the parent upon the continued existence of the parent and child relationship. Id. at 333, 2 N.E. at 795. The recovery was seen to extend to the loss of services the parent might have expected from the child during his or her minority and until the child became emancipated. Id. Before Mayhew, the parent's right to recovery ceased at the death of a child. In regard to damages to be assessed under Sec. 27, the court stated:

"Under the first section, the damages recoverable are arrived at from a consideration of the probable value of the child's services from the time of the injury until it would have attained its majority, taken in connection with its expectancy and prospects in life, less the probable cost of support and maintenance; added to this the expenses of care, attention, et cetera, made necessary by the injury,...."

Mayhew at 335, 2 N.E. at 797.

This position was reaffirmed in Louisville, New Albany, and Chicago Railroad Company v. Goodykoontz (1889), 119 Ind. 111, 21 N.E. 472, where this court again stated the theory of recovery was for the parent's loss of the minor...