Wiesel v. Cicerone

• Decision Date: 17 February 1970
• Docket Number: No. 706-A,706-A
• Citation: 261 A.2d 889,106 R.I. 595
• Parties: Jacqueline WIESEL, Executrix v. Armand CICERONE et al. ppeal.
• Court: Rhode Island Supreme Court

Page 889

261 A.2d 889

106 R.I. 595

Jacqueline WIESEL, Executrix v.Armand CICERONE et al.

No. 706-Appeal.

Supreme Court of Rhode Island.

Feb. 17, 1970.

Abedon, Michaelson, Stanzler & Biener, Providence, Richard A. Skolnik, Providence, Phillips, Nizer, Benjamin, Krim & Ballon, Theodore Friedman, New York City, of counsel, for plaintiff.

Gunning & LaFazia, Providence, Bruce M. Selya, Raymond A. LaFazia, Providence, of counsel, for defendants.

OPINION

PAOLINO, Justice.

These cases arise out of a motor vehicle accident on New London Avenue in the City of Cranston on January 9, 1964, between an automobile operated by Charles A. Wiesel and a tractor trailer truck owned by the defendantO'Keefe Truck Rental Company, leased to the defendantWhat Cheer Bottling Company, and operated by the defendantArmand Cicerone.

On February 20, 1964, as a result of injuries sustained in the accident.Charles A. Wiesel died.He was survived by his wife, Jacqueline and two minor children.On February 26, 1965, his widow, in her capacity as executrix of his estate, brought these six actions for wrongful death under the provisions of G.L.1956, chap. 7 of title 10, the 'Death By Wrongful Act'statute.Subsequent to the commencement of these actions, but before the cases were reached for trial, she remarried.

A jury trial was claimed, the cases were consolidated for trial, and, after extensive preliminary procedures, the cases were reached for trial in the Superior Court on June 7, 1967, and again on February 27, 1969.On each occasion the trial justice declared a mistrial.The troublesome problem in each instance involved the questions of reference, during the voir dire examination of prospective jurors, to Jacqueline's remarriage and the admissibility of evidence during the trial relating to the remarriage.On March 27, 1969, after the two mistrials, the Superior Court, pursuant to the provisions of G.L.1956, § 9-24-27, as amended byP.L.1965, chap. 55, sec. 41, certified the following questions to this court for our determination:

'(1) Where the plaintiff widow commenced a wrongful death action in her then surname, which was the surname of her late husband, but thereafter marries during the pendency of the action, should the trial judge require her to be sworn in her present name, or is it sufficient if the jury is advised of the name of the new husband and questioned as to possible relationship or acquaintanceship with him but without indicating his identity as the plaintiff's new husband or in any way disclosing that the plaintiff has again married?

'(2) Where the plaintiff widow commenced a wrongful death action in her then surname, which was the surname of her late husband, but thereafter marries during the pendency of the action, should the name of the action be amended to that of her new surname and that information be made known to the jury, or is it sufficient if the jury is advised of the name of the new husband and questioned as to possible relationship or acquaintanceship with him but without indicating his identity as the plaintiff's new husband or in any way disclosing that the plaintiff has again married?

'(3) Where the plaintiff widow commenced a wrongful death action in her then surname, which was the surname of her late husband, but thereafter marries during the pendency of the action, should the jury be advised in any way of the fact of her remarriage, or is it sufficient if the jury is advised of the name of the new husband and questioned as to possible relationship or acquaintanceship with him but without indicating his identity as the plaintiff's new husband or in any way disclosing that the plaintiff has again married?

'(4) If the court should rule that the fact of remarriage is to be made known to the jury, and under these circumstances, plaintiff's counsel during voir dire refers to the name of the new husband and the names of those businesses he may be connected with and inquiry is made whether any of the jurors or any of the persons connected with them knew of, worked for or has any connection with those businesses, and the jurors all respond in the negative, may the fact that the new husband owns or controls any of such businesses and that he serves as president or officer of certain of said businesses * * * (be) made known to the jury by defendant's counsel?'

The questions certified present issues of first impression in this state.

The overwhelming weight of authority in this country, with which we agree, is that evidence of the remarriage of a surviving spouse or the possibility thereof should not be considered in arriving at the amount of damages in a wrongful death action.See citations in Dubil v. Labate, 52 N.J. 255, 258-259, 254 A.2d 177, 179, and cases collected in Annot., 87 A.L.R.2d 252, 253(1963).See contraJensen v. Heritage Mutual Ins. Co., 23 Wis.2d 344, 127 N.W.2d 228.The principal reason for this rule is that damages in such actions are determinable as of the date of death and are not to be affected by conditions arising thereafter.SeeCity of Rome,48 F.2d 333(S.D.N.Y.1930) and Annot., 87 A.L.R.2d 252, 253(1963).

In this state the rule for measuring the damages recoverable under our statute is well established.Under § 10-7-2 of our statute, as amended by P.L. 1958, chap. 151, sec. 1, although suit is brought by the executor or administrator, the amount recovered goes to designated survivors.As the court pointed out in Burns v. Brightman, 44 R.I. 316, 322, 117 A. 26, 28, the statute's purpose is '* * * to provide for and distribute to the designated relatives of deceased a legal compensation for the loss caused by the wrongdoer.'And in Walsh v. Bressette, 51 R.I. 354, 357, 155 A. 1, 3, the court said:

'The primary purpose of the statute is to provide a remedy for the loss sustained by the death of the person upon whom the beneficiaries were dependent.(cite omitted)The amount recovered is not administered as an asset of the deceased's estate but is directly distributed to those designated by the statute.'

The loss sustained by the designated beneficiaries is the present value of the net amount remaining after the decedent's personal expenses are deducted from his income or earnings.To determine the damages it is necessary, therefore, (1) to ascertain the gross amount of the decedent's prospective income or earnings, (2) to deduct what the decedent would have had to expend as a producer, computed according to his station in life, his means and his personal habits, to acquire such imcome or earnings, and (3) to reduce the result to present value.Dimitri v. Cienci & Son, 41 R.I. 393, 103 A. 1029, 7 A.L.R. 1336, overrulingSchnable v. Providence Public Market, 24 R.I. 477, 53 A. 634;Reynolds v. Narragansett Electric Lighting Co., 256 R.I. 457, 59 A. 393;McCabe Co., 26 R.I. 457, 59 A. 393;McCabe R.I. 427, 59 A. 112.See Gonyer v. Russell, 160 .f.Supp. 537 (D.R.I. 1958).

It is clear from the above that in this state, the earnings of the deceased are an essential factor in determining damages; that the cause of action arises and the spouse's rights are determined as of the date of the decedent's death; and that the amount recovered goes to the beneficiaries designated in the statute.

Accepting the mayjority view that evidence of the remarriage or possibility thereof of a surviving spouse should not be considered in arriving at the amount of damages in a wrongful death action, we are faced with the precise issue raised by the certified questions-whether any mention whatsoever should be made of the remarriage of Jacqueline Wiesel either during the voir dire of the jury, or by reference to her new name during the trial, or in any other manner whatsoever.

The plaintiff argues for an exclusionary rule, while defendants contend that reference to the remarriage should be made but with proper limiting instructions to the jury that such is not to be considered as to damages.

The defendants contend that references to Mrs. Wiesel's remarriage should be allowed at the voir dire of the jury in order to test the qualification of prospective jurors.Furthermore, they argue that evidence of her remarriage should be allowed for purposes of impeaching her credibility.The defendants rely heavily on the recent New Jersey case of Dubil v. Labate, supra, where the court, after holding that '* * * the remarriage of a spouse is not a factor to be considered by the jury in their determination of the damages to be awarded for the wrongful death of a deceased spouse.'52 N.J. at 261, 245 A.2d at 180, rejected an exclusionary rule in favor of a limiting instruction.The court said:

'Though evidence of the plaintiff's remarriage is not relevant to the question of damages, we disagree with the trial court's attempt to suppress any mention of the remarriage.It would be offensive to the integrity of the judicial process if the plaintiff, after taking an oath to be truthful, were permitted to misrepresent her marital status to the jury.Of course, the defendants may not inquire into the details of the remarriage nor may they offer evidence concerning it.However, the desirable exclusion of evidence relating to the remarriage may not be carried to the point of affirmatively misrepresenting the truth to the jury.It seems to us that in the course of the trial of a wrongful death case, it would be virtually impossible to avoid mention of a remarriage without resorting to untruths.(Contrast the situation here with cases where the subject of a defendant's insurance coverage may be kept from the jury without resort to untruths.(cites omitted))Thus, we believe that-while evidence of the details of a remarriage, such as the earnings of the new spouse or the birth of a child, is to be excluded-the mere fact of a plaintiff's remarriage should not be kept from the jury.The trial judge should instruct the jury, at the beginning of the case, that the plaintiff has remarried but that this fact is...