Simons v. Kidd

• Citation: 42 N.W.2d 307,73 S.D. 306
• Decision Date: 11 April 1950
• Docket Number: 9114
• Parties: BLAINE SIMONS, Administrator of the Estate of Beverly Sanna Knight, Deceased, Appellant, v. MARVIN KIDD, Respondent.
• Court: Supreme Court of South Dakota

73 SD 306, 42 NW2d 307 (1950)

BLAINE SIMONS,

Administrator of the Estate of Beverly Sanna Knight, Deceased,

Appellant,

v. MARVIN KIDD,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Lucius J. Wall, Judge

#9114—Affirmed

Tom Kirby, Blaine Simons, J. Gene McDonnell, Sioux Falls, SD

Attorneys for Plaintiff and Appellant.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD

Attorneys for Defendant and Respondent.

Opinion Filed Apr 11, 1950

ROBERTS, Judge.

This action was brought to recover damages for the alleged wrongful death of Beverly Sanna Knight, who left surviving as next of kin her father and mother, Asben P. Devick and Anna Devick, for whose benefit this action was brought pursuant to the provisions of SDC 37.22. It is alleged that death was caused by the negligence of the defendant in operating his automobile on a public highway. The jury returned a verdict in favor of the. defendant and from the judgment entered on such verdict plaintiff appeals.

Defendant filed an amended answer wherein he admits for the purposes of this action “that he is legally liable for the death of Beverly Sanna Knight which occurred about October 27, 1948 in the City of Sioux Falls, South Dakota and further that the said Beverly Sanna Knight was approximately 26 years of age at said time, and that she was fatally injured about October 23, 1948 in Lincoln County, South Dakota by reason of the negligence of the defendant; however, the defendant denies that the parents of said deceased have been damaged in the sum of Ten Thousand Dollars ($10,000) and the defendant demands that the plaintiff prove the amount of damages, if any, sustained by the parents of the deceased.”

The questions presented here for decision are whether the admission of liability deprived plaintiff of the privilege of making a statement to the jury and of introducing evidence as to the circumstances of the accident and whether the evidence justified the jury in finding that the parents sustained no damages resulting from the death of their daughter.

The manner in which the accident occurred had no bearing upon the amount of damages to be awarded. In an action for personal injuries, a situation might arise where the force of the impact and the surrounding circumstances indicating the degree of violence would have a bearing on the issue of damages. See Johnson v. McRee, 66 CalApp2d 524, 152 P2d 526. But we are not here concerned with the effect of an admission in such a case and there is no claim that the admission of liability is ambiguous or limited in scope.

There is a conflict in the authorities as to whether a trial court within its discretion may permit the introduction of evidence of a fact admitted by answer to be true. A full discussion of the point and review of the authorities may be found in a recent decision, similar in many respects to the case before us, entitled Fuentes v. Tucker, 31 Cal.2d 1, 187 P2d 752. We are not confronted, however, with the problem whether the trial court would have erred in allowing the introduction of such evidence. The function of pleading is to inform the court and the parties of the facts in issue and no evidence is required to establish a fact conceded by answer. It seems clear that the court was not bound to admit such evidence. Vogelgesang v. Farmers State Bank, 54 SD 575, 223 NW 831; cf. First Nat. Bank of Wheaton, Minn., v. Miller, 28 SD 333, 133 NW 264.

SDC 37.2203, as amended by Chapter 173, Laws 1947, provides that the jury in an action for wrongful death “may give such damages, not exceeding in any case ten thousand dollars as they may think proportionate to all injury resulting from such death to the persons respectively for whose benefit such action shall be brought.” The word “injury” in this statute was originally preceded by the words “the pecuniary”. These words were struck out by the 1947 amendment and the word “all” inserted. The wrongful death statute has been construed as granting a new and independent cause of action and not a survival of an action in tort for personal injury or a continuance of that which a decedent could have asserted had he lived. Simons v. Kidd, 73 SD 41, 41 NW2d 840, and cases cited. It created a right of action in the statutory beneficiaries to recover only such damages as would compensate them for the pecuniary loss suffered because of the death. There could be no recovery for mental anguish, bereavement or loss of companionship. Bottum v. Kamen, 43 SD 498, 180 NW 948; Smith v Presentation Academy of Aberdeen, 61 SD 323, 248 NW 762; Tufty v. Sioux Transit Co., 69 SD 368, 10 NW2d 767; Hodkinson v. Parker, 70 SD 272, 16 NW2d 924. The elements of recoverable damage have been the subject of much litigation and divergent holdings. Under a former statute permitting recovery of “damages”, this court held that the statute had reference to pecuniary loss. Smith v. Chicago M. & St. Paul Ry. Co., 6 SD 583, 62 NW 967, 28 LRA 573. The Lord Campbell’s Act provided that the jury “may give such damages as they think proportioned to the injury resulting from such death.” The courts of England declared that the right of recovery thereunder was confined to compensation for pecuniary loss only. Dalton v. S. E. R. Co., 140 English Reprint 1098. A contrary view obtains in some jurisdictions under similar statutory provisions. Mental anguish and the like are regarded as proper elements of damage. This phase of the law is exhaustively reviewed in an annotation in 74 ALR 11. It is unnecessary here to ascertain the legislative intent and determine the extent of losses recoverable under the 1947 amendment. There was no challenge by appellant to the court’s instructions stating the legal principles applicable and the elements to be considered in fixing the amount of damages. We shall assume for the purposes of decision their correctness. The question for consideration is plaintiff’s claim that the parents of the deceased “suffered damage and a verdict which says that they did not is contrary to the law as given by the court and the undisputed evidence.”

The court’s instructions to the jury included the following:

“If you find that the plaintiff is entitled to recover damages from the defendant under the evidence and these instructions, you may give such damages, not exceeding $10,000.00, as you find proportionate to all injury resulting from the death of said Beverly Sanna Knight to her said parents, and in that connection, you may take into consideration in fixing the amount of damages, any mental suffering, loss of health, loss of companionship of the deceased, loss of counsel and advice, and loss of aid and assistance, if any, which you may find from the evidence were suffered by the parents as the direct result of the death of their said daughter, and which you find have a monetary value. In this connection, you are instructed that should you find a verdict in favor of the plaintiff, the verdict at all times should be fair, reasonable and just.”

The general rule in tort actions is that the question...