Porter v. Funkhouser

• Decision Date: 29 May 1963
• Docket Number: No. 4540,4540
• Parties: Don R. PORTER, Appellant, v. Preston Lee FUNKHOUSER, Jr., Muriel Joyce Everest, Merla Gene Hale, and John R. Funkhouser, Respondents.
• Court: Nevada Supreme Court

Page 216

382 P.2d 216

79 Nev. 273

Don R. PORTER, Appellant, v. Preston Lee FUNKHOUSER, Jr., Muriel Joyce Everest, Merla

Gene Hale, and John R. Funkhouser, Respondents.

No. 4540.

Supreme Court of Nevada.

May 29, 1963.

Rehearing Denied June 24, 1963.

R. P. Wait and E. J. Wait, Jr., Reno, for respondents.

McNAMEE, Justice.

This is a wrongful death action brought by the adult children of Barbara Jane Funkhouser who died as a result of a collision between the car she was driving and a truck driven by appellant. The amended answer admits negligence, intoxication, and proximate cause. By jury verdict, respondents were awarded $35,000 compensatory damages, $1,408.40 for funeral expenses, and $5,000 punitive damages. By separate verdict, respondent Preston Lee Funkhouser, Jr., was awarded $525 for damages to deceased's automobile.

Appeal is from the judgment based on the verdicts. Several errors are assigned.

Appellant claims that the verdict for $35,000 compensatory damages is excessive and that the verdict for $5,000 punitive damages is wrong.

1. Appellant argues that the $35,000 compensatory damages awarded for the death of a 68-year-old woman to four adult children, only one of whom proved the loss of services of an objective monetary value, is excessive as a matter of law.

It is true that evidence of loss of services of monetary value in itself is insufficient to sustain the award of $35,000. Under NRS 41.090, however, in wrongful death actions a jury is empowered to include damages for loss of probable future companionship, society, and comfort.

In Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824, we stated:

'The core of the matter seems to be that an appellate court will disallow or reduce the award if its judicial conscience is shocked; otherwise it will not.'

We are unwilling to say as a matter of law that the award of $35,000 compensatory damages to four adult children is so grossly excessive as to shock the moral sense. We conclude as we did in Novack v. Hoppin, 77 Nev. 33, 43, 359 P.2d 390, 395, that '[u]nder the particular facts and circumstances of this case, we are unable to say that the award of damages was so excessive as to justify reversal on that ground.' In that case, an award of $175,000 compensatory damages was made to the widow and four minor children of the deceased. See Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752.

Appellant further argues that the award for 'loss of probable future companionship, society, and comfort' must bear a reasonable relation to the pecuniary loss. The verdict does not separate in its $35,000 verdict what part thereof was for the loss of probable future companionship, society, and comfort. Furthermore, since recovery for 'future companionship, society, and comfort' is allowed by statute, and there is no requirement that such damages must bear a reasonable relation to pecuniary loss, appellant's contention in this regard is without merit.

Appellant contends that the amendment to NRS 41.090 which allows the court or jury to include damages 'for loss of probable future companionship, society and comfort' has made the statute contradictory on its face, because the word 'pecuniary' is limited in meaning to tangible financial loss. We reject this interpretation. The language of the statute is clear and does not warrant such a construction. In this connection the construction placed on this statute by appellant during the trial appears in Instruction No. 14 which as submitted by the appellant and given by the court is as follows:

'You shall award plaintiffs such damages as in your judgment will compensate them for the pecuniary loss proved to have been sustained by them. The measure of such compensatory damages is such sum as will equal the pecuniary or monetary loss that the plaintiffs will have actually suffered by being deprived of the support, financial aid, services, earnings, and probable future companionship, society and comfort by the death of the deceased.' See Patton v. Henrikson, 79 Nev. ----, 380 P.2d 916.

2. Error is asserted because the court instructed the jury that it might take into account the 'reduced purchasing power' of the dollar in determining the amount of damages to be awarded. He does admit in his opening brief, however: 'The weight of authority supports the trial court, but that alone does not necessarily make it correct.'

The instruction in this regard is as follows:

'This Court takes judicial notice of the fact that the purchasing power of the dollar has substantially decreased in recent years. Therefore, you may consider this as an established fact in this case, and you may take this factor of reduced purchasing power into consideration in determining the amount of damages awarded to the plaintiffs.'

The court did not order but rather left it within the discretion of the jury whether or not to take this factor into consideration in arriving at the amount of the damages. Such an instruction is proper. Annot., 12 A.L.R.2d 611, 619, 643-645. 'There was no error in giving [such an] instruction, nor would it have been error to refuse it, because it is hardly necessary to remind a jury of the diminished purchasing power of the dollar as the jurors are reminded of it almost daily when they purchase the necessaries of life.' Risley v. Lenwell, 129 Cal.App.2d 608, 650, 277 P.2d 897, 925.

3. Appellant contends that it was improper to instruct the jury as to the legal definition of intoxication and on the statutory presumption of...