Reiser v. Coburn

• Decision Date: 04 December 1998
• Docket Number: No. S-97-631,S-97-631
• Citation: 255 Neb. 655,587 N.W.2d 336
• Parties: Martin F. REISER, Personal Representative of the Estate of James L. Reiser, deceased, appellant, v. Douglas R. COBURN, appellee.
• Court: Nebraska Supreme Court

Page 336

587 N.W.2d 336

255 Neb. 655

Martin F. REISER, Personal Representative of the Estate of James L. Reiser, deceased, appellant, v. Douglas R. COBURN, appellee.

No. S-97-631.

Supreme Court of Nebraska.

Dec. 4, 1998.

Syllabus by the Court

1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

2. Damages: Verdicts: Juries: Appeal and Error. Where the amount of damages allowed by a jury is clearly inadequate under the evidence, it is error for the trial court to refuse to set the verdict aside.

3. Damages: Appeal and Error. The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved.

4. Wrongful Death: Words and Phrases. The phrase "next of kin" in Nebraska's wrongful death statute means those persons nearest in degree of blood surviving the decedent, who ordinarily are those persons who take the personal estate of the deceased under the statutes of distribution.

5. Wrongful Death: Damages. A plaintiff in a wrongful death case can only recover damages for loss of the deceased's society, comfort, and companionship which are shown by the evidence to have a pecuniary value.

6. Wrongful Death: Damages. In a wrongful death action, the law does not provide any positive, definite mathematical formula or legal rule by which a jury shall fix an amount of pecuniary loss; it must be determined upon a consideration of the circumstances of each case.

7. Wrongful Death: Damages: Evidence. In a wrongful death action, there is no requirement that there be evidence of a dollar value of companionship, counseling, or advice.

Wrongful Death: Damages: Mental Distress. In a wrongful death action, no recovery is allowed for mental suffering or bereavement or as solace on account of the death.

9. Verdicts. If a verdict shocks the conscience, it necessarily follows that the verdict 10. Wrongful Death: Damages: Words and Phrases. In an action for wrongful death of a child, money value of parental loss is not limited to, always equated with, or necessarily dependent on deprivation of the child's monetary contribution toward parental well-being.

was the result of passion, prejudice, mistake, or some other means not apparent in the record.

11. Wrongful Death: Damages. There is no exact fiscal formula for determination of damages recoverable for loss of society, comfort, and companionship, a loss which is not subject to some strict accounting method based on monetary contributions, past or prospective. Rather, the society, care, and attention of a deceased family member are services having financial value which may be both measured and compensated.

12. Juries: Verdicts: Stipulations. A jury is not bound by a stipulation of the parties. However, when stipulated expenses are undisputed, that fact may be considered in determining whether or not the verdict was inadequate.

E. Terry Sibbernsen and Mandy L. Strigenz, of E. Terry Sibbernsen, P.C., Omaha, for appellant.

David D. Ernst and Jeffrey J. Huber, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

James L. Reiser died at the age of 18 as a result of injuries he sustained when the vehicle he was operating collided with a vehicle operated by Douglas R. Coburn at the intersection of two county roads in rural Boyd County, Nebraska. James Reiser's father, Martin F. Reiser, as personal representative of his son's estate, brought this action against Coburn, alleging that Coburn's negligence caused the accident and the death of James Reiser. Following trial, a jury found that Coburn was 50.1 percent negligent, that James Reiser was 49.9 percent negligent, and that James Reiser's estate sustained total damages in the amount of $17,000. The court reduced this award by the percentage of James Reiser's negligence as determined by the jury, which resulted in a judgment of $8,517. In this appeal, Martin Reiser does not challenge the determination of comparative negligence but contends that the district court erred in not granting his motion for a new trial on the issue of damages because the amount of the verdicts was clearly inadequate. We agree and therefore reverse, and remand for a new trial on the issue of damages only.

FACTS

On September 19, 1994, at approximately 6:30 p.m., James Reiser was driving a 1952 Chevrolet pickup north on a county road 5 miles west of Spencer, Nebraska. On the same date and at the same time, Coburn was driving a 1994 Ford pickup east on a county road also located about 5 miles west of Spencer, Nebraska. The two pickups collided at an unmarked intersection.

After receiving medical attention at the accident scene, James Reiser was transported to Niobrara Valley Hospital in Lynch, Nebraska. Upon his arrival there, he was generally unresponsive, although he occasionally squeezed the hand of a nurse when asked to do so. Approximately 1 1/2 hours after his arrival at the hospital in Lynch, James Reiser was transported by helicopter to Marian Health Center in Sioux City, Iowa. He was unconscious upon arrival. While hospitalized in Sioux City, James Reiser underwent surgery to remove a blood clot from his brain. However, he never regained consciousness, and on September 21, 1994, he died from the injuries sustained in the accident.

In his capacity as personal representative, Martin Reiser commenced this action against Coburn. In his first cause of action, he sought damages on behalf of James Reiser's parents for loss of consortium, services, society, companionship, and counsel resulting from the death of their son. In his second cause of action, Martin Reiser claimed damages The case was tried to a jury on January 27 through 29, 1997. On a special verdict form, the jury awarded total damages of $0 the first cause of action and $17,000 on the second cause of action, which the court then reduced to $8,517 in accordance with the jury's finding of comparative negligence. Martin Reiser filed a motion for a new trial on various grounds, including the inadequacy of the verdict on each cause of action. The motion was overruled, and Martin Reiser then perfected this appeal, which we removed to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals.

on behalf of the estate for pain and suffering experienced by James Reiser before his death, medical expenses, and funeral and burial expenses. Coburn filed an answer, denying that he was negligent and alleging that James Reiser was contributorily negligent.

ASSIGNMENTS OF ERROR

Martin Reiser contends that the district court erred in not granting a new trial because of the inadequacy of damages awarded on both of his causes of action.

STANDARD OF REVIEW

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Hartwig v. Oregon Trail Eye Clinic, 254 Neb. 777, 580 N.W.2d 86 (1998); Barnett v. Peters, 254 Neb. 74, 574 N.W.2d 487 (1998).

Where the amount of damages allowed by a jury is clearly inadequate under the evidence, it is error for the trial court to refuse to set the verdict aside. Sanwick v. Jenson, 244 Neb. 607, 508 N.W.2d 267 (1993). The amount of damages to be awarded is a determination solely for the fact finder, and its action in this respect will not be disturbed on appeal if it is supported by evidence and bears a reasonable relationship to the elements of the damages proved. World Radio Labs. v. Coopers & Lybrand, 251 Neb. 261, 557 N.W.2d 1 (1996); Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996).

ANALYSIS

We begin by noting that although this case was tried before our decision in Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998), the comparative negligence instruction given by the trial court was consistent with our holding in that case. No error is assigned with respect to the determination of comparative negligence, and thus the only issues we address in this appeal are whether the verdicts on both causes of action were inadequate as a matter of law.

Neb.Rev.Stat. §§ 30-809 and 30-810 (Reissue 1995) authorize a personal representative to bring a civil action on behalf of the surviving spouse or next of kin for damages they have sustained as a result of the decedent's death caused by another person. In this context, "next of kin" means those persons nearest in degree of blood surviving the decedent, who ordinarily are "those persons who take the personal estate of the deceased under the statutes of distribution." Mabe v. Gross, 167 Neb. 593, 596, 94 N.W.2d 12, 15 (1959). Prior to 1973, we construed these statutes to provide that the only measure of damages which surviving parents could recover for the wrongful death of a child was the pecuniary loss which the parents sustained by reason of being deprived of the child's services during his or her minority and the loss of contributions that might reasonably be expected to be made after reaching majority. See Dorsey v. Yost, 151 Neb. 66, 36 N.W.2d 574 (1949). See, also, Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270 (1990).

In Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973), we held for the first time that surviving parents could also recover for the monetary value of the loss of society, comfort, and companionship of their deceased child. A separate action on behalf of the decedent's estate for conscious pain and suffering experienced before death, medical expenses, and funeral and burial expenses may be joined as a separate cause of action in an action for wrongful death. Brandon v. County of Richardson, 252 Neb....