Tufty v. Sioux Transit Co.

• Decision Date: 04 August 1943
• Docket Number: 8606.
• Citation: 10 N.W.2d 767,69 S.D. 368
• Parties: TUFTY v. SIOUX TRANSIT CO. et al.
• Court: South Dakota Supreme Court

10 N.W.2d 767

69 S.D. 368

TUFTY v. SIOUX TRANSIT CO. et al.

No. 8606.

Supreme Court of South Dakota

August 4, 1943

Bailey, Voorhees, Woods & Bottum and M. T Woods, all of Sioux Falls, for appellant.

Louis H. Smith, of Sioux Falls, for respondent.

RUDOLPH Judge.

This case was before the court on a prior occasion wherein it was held that the attempted appeal by the defendant Sioux Transit Company from the judgment absolving the defendant Ted Tufty from the liability should be dismissed. Tufty v. Sioux Transit Company, S.D., 7 N.W.2d 619. As the appeal now stands the defendant Sioux Transit Company has appealed from the judgment entered in favor of the plaintiff. For the purposes of this opinion, only a brief statement of the facts is necessary. Janis Lee Tufty was riding in a car driven by the defendant Ted Tufty. This car collided with a bus operated by the agent of the defendant Sioux Transit Company and as a result of this collision Janis was killed. The plaintiff, Ivan Tufty, the father of Janis, was appointed special administrator of her estate and brought this action to recover for her death. At the time of her death Janis was five years old; a bright, intelligent, normal child. The jury determined that the proximate cause of the collision and the resulting death of Janis was the negligence of the bus driver and returned a verdict in favor of the plaintiff in the amount of $6,000. By its requested instruction No. 8, the appellant requested the court to instruct the jury that neither the mental pain or suffering of the parents nor the loss of the society and companionship of the child constituted an element of damage in this type of action. This instruction was refused by the trial court. We are of the opinion that this refusal of the court to so instruct was error; that it was also error to include in the instruction on the measure of damages the "possible benefits" which might accrue to the parents from the continued life of this child. In view of the record in this case, we believe this error was prejudicial to the appellant, and requires a reversal and a new trial.

This action is of necessity brought under and sustained by our statutes relating to death by wrongful act. SDC 37.22. We say "of necessity brought under" for the reason that it is only by virtue of these statutes that a cause of action exists. Ulvig v. McKennan Hospital, 56 S.D. 509, 229 N.W. 383. Under the statute, SDC 37.2203, the damages assessed by the jury are to be "proportionate to the pecuniary injury resulting from such death." For the loss of the companionship and association of the child, and for the grief of the father and mother on account of its death, our statutes, interpreted in the light of judicial decisions upon like statutes, afford the bereaved father and mother no compensation. Smith v. Chicago, M. & St. P. Ry Co., 6 S.D. 583, 62 N.W. 967, 28 L.R. A. 573; Bottum v Kamen, 43 S.D. 498, 180 N.W. 948; Smith v. Presentation Academy of Aberdeen, 61 S.D. 323, 248 N.W. 762. While it is established in this state that there is "no mathematical rule or formula by which damages in this class of cases must or should be computed by courts or juries", Bottum v. Kamen, supra [43 S.D. 498, 180 N.W. 951], nevertheless it must be recognized that the type of action is such that the trial court should exert its influence to restrain those excesses into which juries are apt to run. Unless such influence is exerted, sympathy and sentiment will supplant the exercise of an honest and impartial judgment in reaching a verdict limited to the pecuniary injury resulting from the death. We, therefore, are of the opinion that the court erred in refusing to give the instruction requested by appellant which would have cautioned the jury against basing any part of its verdict upon the mental pain or suffering of the parents or the loss of the society or companionship of the child.

The trial court instructed the jury by its instruction No. 20 that should a verdict be found for the plaintiff "*** it should embrace all the probable or even possible benefits which might accrue from this life, ***". After a considerable search of the cases, we find no support for including the possible benefits which might accrue, except the quotation from the New York case of Morris v. Street Railway Co., 51 A.D. 512, 64 N.Y.S. 878, set out in the opinion in Bottum v. Kamen, supra. It, perhaps should be presumed that by quoting from the New York case, this court approved the rule therein announced, but such presumption, if it exists, is overcome by the language of the court following this quotation whereby it approved the trial court's instruction which in part stated: "She is not entitled to recover anything for the loss of his society, nor is she entitled to recover anything for financial benefit she might possibly have received, but only such benefits as she could reasonably have expected...