Stang v. Hertz Corp.

• Decision Date: 26 November 1969
• Docket Number: No. 312,312
• Citation: 463 P.2d 45,81 N.M. 69,1969 NMCA 118
• Parties: Sister Mary Assunta STANG, Personal Representative for Catherine Lavan, Deceased, Plaintiff-Appellant, v. HERTZ CORPORATION, a corporation, and Firestone Tire & Rubber Company, a corporation, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 45

463 P.2d 45

81 N.M. 69

Sister Mary Assunta STANG, Personal Representative for Catherine Lavan, Deceased, Plaintiff-Appellant, v. HERTZ CORPORATION, a corporation, and Firestone Tire &amp Rubber Company, a corporation, Defendants-Appellees.

No. 312.

Court of Appeals of New Mexico.

Nov. 26, 1969.

Certiorari Issued Jan. 2, 1970.

Richard E. Ransom, William G. Gilstrap, Smith, Ransom & Deaton Albuquerque, for plaintiff-appellant

James C. Ritchie, Robert G. McCorkle, Rodey, Dickason, Sloan, Akin & Robb, Allen C. Dewey, Peter J. Broullire, III, Modrall, Seymour, Sperling, Roehl & Harris, Albuquerque, for appellees.

OPINION

WOOD, Judge.

Catherine Lavan died from injuries received in an automobile accident. Plaintiff, her personal representative, sought damages for the value of her life, for her conscious pain and suffering from the injury until death, for medical and related care of decedent and the reasonable expense of decedent's funeral and burial. On the basis of stipulated facts, the trial court ruled the personal representative could not recover any of the foregoing items of damage. Plaintiff appeals from the order dismissing her complaint. No issue is presented concerning the expenses of the funeral and burial. We decide whether the other items of damage may be recovered (if liability is established--a point not involved in this appeal). Our decision answers two questions: (1) If there is no pecuniary injury to the statutory beneficiaries, may there be a recovery for the wrongful death of decedent? (2) Under the facts of this case, may the personal representative recover for decedent's conscious pain and suffering and medical and related care from the injury until death? We answer 'yes' to both questions.

Recovery of damages absent pecuniary injury to a statutory beneficiary.

Catherine Lavan was a college graduate and experienced in teaching and school administration. At the time of her death she was serving as director of a church school; this position is similar to that of 'principal' in a public school. If called as a witness, the personnel director of the Albuquerque Public Schools would testify that decedent qualified for employment in that public school system '* * * at an annual gross salary of $11,668 as a grade school principal, together with fringe benefits amounting to approximately 22% of said gross salary, * * *'

However, decedent was a nun; a member of the Sisters of Charity. She had taken the simple, but perpetual, vow of poverty. Her statutory beneficiaries under § 22--20--3, N.M.S.A.1953 are brothers and sisters. It is stipulated:

'There is no substantial evidence from which could be found that the statutory beneficiaries * * * would have had, on the date of their sister's death, any reasonable expectancy of pecuniary benefit from her continued life.'

Section 22--20--3, supra, states that damages may be awarded '* * * taking into consideration the pecuniary injury or injuries resulting from such death to the surviving party or parties entitled to the judgment, * * *.' 'Pecuniary injury' means a reasonable expectation of pecuniary benefits from the continued life of the deceased. Whitmer v. El Paso & S.W. Co., 201 F. 193 (5th Cir. 1912). See Varney II (Varney v. Taylor, 77 N.M. 28, 419 P.2d 234 (1966)); Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257 (1938) (overruled on other grounds, Montgomery v. Vigil, 65 N.M. 107, 332 P.2d 1023 (1958)).

The stipulated fact, then, is that there was no pecuniary injury to the statutory beneficiaries as a result of their sister's death. If a pecuniary injury to brothers and sisters could be presumed, a point we do not decide, that presumption no longer existed when it was stipulated that in fact there was no pecuniary injury. See Payne v. Tuozzoli, 80 N.M. 214, 453 P.2d 384 (Ct.App.1969) and cases therein cited.

Because there was no pecuniary injury to the statutory beneficiaries, the trial court held there could be no recovery for the death of decedent. Plaintiff assumes there must be a pecuniary injury but contends the pecuniary injury '* * * is measured by reference to the deceased, not by reference to beneficiaries.' Defendant Firestone (Firestone Tire & Rubber Company) asserts damages for wrongful death are not recoverable if there is no pecuniary injury to at least one statutory beneficiary. Compare Brock v. Harkins, 80 N.M. 596, 458 P.2d 848 (Ct.App.1969), cert. denied 80 N.M. 607, 458 P.2d 859 (1969). Defendant Hertz (Hertz Corporation) takes the position that in the absence of pecuniary injury to a statutory beneficiary there can be no recovery of substantial damages. Hertz' position recognizes a right to sue for wrongful death but would prohibit recovery of other than nominal damages where there is no pecuniary injury to a statutory beneficiary. Apparent support for each of these views may be found in language of our New Mexico Supreme Court decisions.

We do not agree with any of these views. Section 22--20--3, supra, clearly permits the fact finder to consider the pecuniary injury to the statutory beneficiaries in awarding compensatory damages for wrongful death. It does not, as plaintiff contends, refer to the pecuniary injury of the deceased. It does not, as defendants contend, say that no damages (or no substantial damages) may be recovered if a statutory beneficiary has not suffered pecuniary injury as a result of the death.

Pecuniary injury to a statutory beneficiary is an element to be considered in awarding damages under § 22--20--3, supra. Its absence (or presence) is to be considered in arriving at the amount of the award. Proof of pecuniary injury is not a prerequisite to recovery of damages for wrongful death. Pecuniary injury to the statutory beneficiary is proved so that the fact finder may consider this injury in awarding damages for the wrongful death. Damages for the wrongful death may be recovered by proof of the present worth of life of decedent to the decedent's estate. We reach these views by considering the history, content and intent of our statute and by considering the court decisions interpreting our statute.

The Statute.

According to Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938), at common law, no cause of action for personal injuries which resulted in death survived in favor of the personal representative of the deceased. The right to recover damages for wrongful death is entirely statutory. Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963); see Tauch v. Ferguson-Steere Motor Co., 62 N.M. 429, 312 P.2d 83 (1957); Romero v. A.T. & S.F. Ry., 11 N.M. 679, 72 P. 37 (1903).

Laws 1882, ch. 61, §§ 1--3 provided for the recovery of damages for wrongful death. Section 1 pertained to death caused by common carrier. For present law, see § 22--20--4, N.M.S.A.1953 (Supp.1969). Section 2 pertained to death caused by other than common carrier. Section 3 stated that the jury might award damages:

'* * * not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties, who may be entitled. * * *'

This 1882 statute was taken from Missouri. Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936). The inference in the Missouri cases discussed in Hogsett v. Hanna, supra, is that the wording of our 1882 law permitted, generally, a recovery of damages for wrongful death. Nevertheless, with little if any consideration of this language, precedent indicates that the language quoted from § 3 ('with reference to the necessary injury') limited recovery to the pecuniary injury suffered by the statutory beneficiary entitled to sue. See dissent of Justice Coors in Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274 (1952); Acton v. Shields, 386 S.W.2d 363 (Mo.1965); Moffatt v. Tenney, 17 Colo. 189, 30 P. 348 (1892). We proceed on the basis that under the 1882 statute there could be no recovery of damages for wrongful death unless a statutory beneficiary suffered a pecuniary injury as a result of the death.

The 1882 statute was amended by Laws 1891, ch. 49. Section 1 of the 1891 Act carried forward the substance of § 2 of the 1882 Act. Its present form, § 22--20--1, N.M.S.A.1953, reads:

'Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled th party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.'

Section 2 of the 1891 Act made substantial revisions in the 1882 law. Among other things, the 1891 Act provided that the statutory action was to be brought in the name of the personal representative rather than in the name of specified beneficiaries. It deleted the phrase "* * * with reference to the necessary injury resulting from such death, * * *" and substituted '* * * taking into consideration the pecuniary injury or injuries resulting from such death. * * *' It named various beneficiaries and, significantly in our opinion, added: '* * * if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the prsonal property of deceased persons.' The pertinent portion of its present form, § 22--20--3, supra, reads:

'Every such action as mentioned in section 1821 (22--20--1) shall be brought by and in the name or names of the personal representative or representatives of such deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, taking into consideration the pecuniary injury or injuries...