Salerno v. Manchin

• Decision Date: 03 December 1974
• Docket Number: No. 13441,13441
• Citation: 158 W.Va. 220,213 S.E.2d 805,77 A.L.R.3d 1167
• Parties: , 77 A.L.R.3d 1167 William Jennings SALERNO, Administrator, etc. v. John MANCHIN (two cases).
• Court: West Virginia Supreme Court

Page 805

213 S.E.2d 805

158 W.Va. 220, 77 A.L.R.3d 1167

William Jennings SALERNO, Administrator, etc. v. John MANCHIN (two cases).

No. 13441.

Supreme Court of Appeals of West Virginia.

Dec. 3, 1974.

Syllabus by the Court

1. 'A dependent distributee of a deceased in a wrongful death action, as contemplated by Code, 1931, 55--7--6, as amended, is entitled to recover damages for financial or pecuniary loss occasioned by such death only if he was, in fact, dependent upon the deceased for support and such support may have been monetary or for services.' Point 6, syllabus, Adams v. Sparacio, W.Va., 196 S.E.2d 647, decided by this Court May 22, 1973.

2. Under the West Virginia wrongful death statute a dependent distributee may be one who is partially dependent upon the deceased for services and may recover for pecuniary loss within the limits under the statute.

3. In actions under the wrongful death statute pecuniary loss may be considered in connection with the first $10,000 award and it is reversible error for a trial court to instruct the jury that it cannot include any sum for financial or pecuniary loss in awarding damages.

Furbee, Amos, Webb & Critchfield, Russell L. Furbee, Albert J. Lemley and Alan B. Mollohan, Fairmont, for appellant.

Paule E. Parker, Jr., Fairmont, Clarence M. Rogers, Clarksburg, for appellee.

BERRY, Justice:

This is an appeal by John Manchin, the defendant below and hereinafter referred to as the defendant, from a final order of the Circuit Court of Marion County on January 3, 1973 which overruled defendant's motion to set aside the verdicts of the jury in favor of the plaintiff and to grant the defendant a new trial. Two separate actions were originally instituted by William Jennings Salerno as administrator of the estates of Jane Fortney Salerno and Michael Anthony Salerno, but both actions were consolidated and tried together as one action. Jane Fortney Salerno, the wife of William Jennings Salerno, and Michael Anthony Salerno, the son of William Jennings Salerno, were killed as a result of a fire which destroyed the defendant's retail furniture and appliance store in Farmington, West Virginia on November 11, 1968. Under the provisions of West Virginia's wrongful death statute the jury returned a verdict in favor of the administrator for the death of Jane Fortney Salerno in the total amount of $70,760.50, which included $60,000 for the financial and pecuniary loss sustained by the deceased's husband and the deceased's daughter, $10,000 exclusive of financial and pecuniary loss, and $760.50 for funeral expenses. The jury also awarded damages for the death of Michael Anthony Salerno in the total amount of $10,760.50 which included $10,000 which was exclusive of any sum for financial or pecuniary loss, and $760.50 for damages for funeral expenses.

The defendant's primary contention is that the $60,000 awarded as a financial or pecuniary loss sustained by William Jennings Salerno and Toni Daine Salerno, the surviving husband and daughter, was improper under the West Virginia wrongful death statute because neither the husband nor the daughter were 'dependents of' Jane Fortney Salerno, the deceased, within the meaning of the statute. This Court granted the defendant's appeal on December 17, 1973 and the case was submitted for decision on October 1, 1974 upon the arguments and briefs filed on behalf of the respective parties.

During the trial, on the theory that William Jennings Salerno was a 'dependent distributee' within the meaning of the wrongful death statute, the plaintiff introduced evidence to the effect that prior to her death Mrs. Salerno was in good health and performed all of the housekeeping chores, the cooking, the laundry and had taken care of the children. Subsequent to his wife's death Mr. Salerno hired housekeepers and has been paying approximately $100 a month for their services. Mr. Salerno also testified that prior to her death, his wife cut the grass, canned vegetables out of the garden, made a few clothes for herself and her daughter and occasionally drove the truck on errands. Mr. Salerno testified that figured conservatively his wife each week had spent approximately 21 hours cooking, 14 hours dishwashing, 10 hours laundering, 14 hours housekeeping, 10 hours chauffeuring and 40 hours caring for the children. He also testified that after his wife's death he paid approximately $1.50 an hour for various women to do the housecleaning and to help with taking care of his daughter.

Thomas E. Hewitt who is the manager of the West Virginia Department of Employment Security in Fairmont, Marion County, West Virginia, testified for the plaintiff that according to his notes the reasonable hourly wage for cooks was $1.25 an hour, for dishwashers approximately $1 an hour, for laundresses $1.20 an hour, for someone to do light housework $1.20 an hour, for chauffeurs $1.90 an hour and for babysitters from $.75 to $2 an hour. However, on cross-examination it was ascertained that these figures were acquired by Mr. Hewitt from the Clarksburg Employment Security office via telephone, and consequently, the defendant objected to the introduction of this evidence although his objection was overruled by the court.

The plaintiff next introduced the testimony of Dr. Richard Raymond who was an economics expert. His testimony was based on the hourly rates provided by Mr. Hewitt and the estimated time that Mr. Salerno had calculated that his wife had spent on each of the household chores each week and he concluded that the replacement value for Mrs. Salerno's work over forty years, which was Mr. Salerno's life expectancy, would amount to $156,162.

The defendant contends that the plaintiff failed to make a prima facie case against him and failed to prove any negligence on his part and that even if there were negligence on the part of the defendant the negligence was not the proximate cause of the deaths of plaintiff's decedents. The defendant also contends that the court erroneously instructed the jury on the award provisions of the West Virginia wrongful death statute.

There is no merit to the assignment of error of the defendant that the plaintiff failed to prove negligence on the part of the defendant, or that the defendant's negligence was not the proximate cause of the deaths of plaintiff's decedents. The evidence clearly shows that the plaintiff's decedents were on the third floor of the defendant's building viewing certain merchandise the defendant was selling and when the building caught fire they were trapped, without any means of escape. There were no fire sprinklers in the building no fire doors, no fire detection equipment and no fire alarm system. The question of negligence was one for jury determination and the evidence clearly warranted its finding on this matter.

The assignment of error with regard to the primary question as to whether the husband and daughter of the decedent were dependent distributees is not well taken. It is the contention of the defendant that the husband and daughter were not dependents of Mrs. Salerno and that they did not suffer any financial or pecuniary loss as the result of her death. The West Virginia wrongful death statute, Code, 55--7--6, as amended, referred to as the West Virginia Lord Campbell's Act, under which these actions were instituted, reads in part as follows:

Every such action shall be brought by and in the name of the personal representative of such deceased person, and the amount recovered in every such action shall be recovered by said personal representative and be distributed in accordance herewith. In every such action the jury may award such damages as they deem fair and just, not exceeding ten thousand dollars, and the amount recovered shall be...