Herbertson v. Russell ( 1962 )

Mr. Justice McWilliams

delivered the opinion of the Court.

In a trial to the court judgment was entered for Amos and Eva Russell against Fred and Robert Herbertson, doing business as Herbertson Sand and Gravel Company and hereinafter referred to as defendant or Herbertson, in the amount of $25,000 for the wrongful and negligent death of their minor daughter, Glenda Sue Russell. By writ of error Herbertson seeks reversal of the judgment, contending: (1) that their agent, one Barksdale, was not negligent; (2) but that if he was in fact negligent, such was not the proximate cause of Glenda Sue’s death; (3) that in reality the proximate cause of Glenda Sue’s death was her own act of running into and in front of the left rear wheel of the Herbertson truck; and (4) that the award of $25,000 was so grossly excessive that as a matter of law it must be set aside.

We conclude that the trial court committed no error when as the trier of the facts it determined that Herbert-son was liable to respond in money damages to the Russells, but that the court did err when it fixed the monetary damages of the Russells at $25,000. Accordingly, the judgment is reversed and the cause remanded for a new trial on the issue of damages only.

This tragedy occurred at about 11 o’clock A.M. on August 2, 1959, in Arapahoe County, at the intersection of West Hampden Avenue and South Bryant Street. West Hampden Avenue runs east and west, with South Bryant Street running north and south. These two roadways intersect at right angles and in so doing form a “T” intersection, i.e. South Bryant “dead ends” at Hampden and only runs north from Hampden.

One Barksdale was a truck driver for Herbertson, and at the time and place of this fatality was admittedly about his master’s business. More specifically, Barks-dale was driving a Herbertson-owned truck, partially filled with pit run gravel, in an easterly direction on Hampden Avenue, approaching the intersection of that avenue and South Bryant Street.

Glenda Sue, age 6, was running in a southerly direction on the east side of South Bryant Street. She apparently saw a car approaching this intersection from the east, and when this car slowed and eventually stopped she ran into the intersection and into and in front of the left rear wheels of the Herbertson truck.

Barksdale testified that he never saw Glenda Sue until she was even with the cab of the truck, and that though he applied his brakes it was by then too late to avoid the accident. A pivotal factual dispute was whether Barksdale was to the right of the center line of Hampden Avenue or, on the contrary, was astraddle of the center line so that his left wheels were some two or three feet on'the “wrong” side of the road. Barksdale insisted that he was entirely on the “right” side of the avenue. A disinterested witness who was driving in a westerly direction on Hampden Avenue testified that Barksdale was entirely in the proper lane for eastbound travel, and was not “over” the center line of that street. It was this witness who said she saw Glenda Sue running in a southerly direction along the east side of South Bryant Street and therefore stopped her vehicle, whereupon Glenda Sue ran into the crosswalk area past the front end of her vehicle and into the side of the Herbertson truck.

Two police officers who investigated the accident found 37 feet of heavy skid marks several feet north of the center line of Hampden Avenue, and both stated that from their investigation they concluded that these skid marks were laid down by the Herbertson truck. Also they testified that they found blood, hair and human matter at or very near to these skid marks. The net effect of this testimony, if believed, would tend to establish that the truck was astraddle the center line of Hampden Avenue and not entirely to the south of the center line.

On this state of the record the trial court found that Barksdale was negligent in that a portion of his truck was on the “wrong” side of the street and further that under all the facts and circumstances of the case Barks-dale failed to exercise due care, and that his negligence was a proximate cause of the ensuing accident. Additionally, the trial court found that Glenda Sue’s conduct was consonant with that of a reasonably prudent 6 year old child and that she was not contributorily negligent.

Herbertson contends that the trial court erred in finding that Barksdale was negligent, and that such was a proximate cause of Glenda Sue’s death. Recognizing that because of • her age it was most difficult to make out a case of contributory negligence against Glenda Sue, Herbertson argues that Glenda Sue’s act of running across Hampden Avenue was the proximate cause of her death, regardless of whether the act -be deemed negligent or not.

In our view of the matter the trial court committed no error in imposing liability on Herbertson. The issues of primary negligence, contributory negligence and proximate causation were clearly disputed issues of fact, and no citation of authority is deemed necessary in support of the oft-repeated pronouncement that findings of fact made by the trier of the facts will not be disturbed on review if supported by credible testimony.

Certainly there is competent and credible evidence to support the finding that Barksdale at the very least was astraddle of the center line of Hampden, and that this negligent act was at least a proximate cause of the fatality. Also, the trial court was obviously impressed by the fact that the disinterested witness traveling west on Hampden saw this child and stopped her vehicle, whereas Barksdale who had an even clearer view of the intersection and claimed to be maintaining a sharp lookout did not see the child until only a split second before the impact. In short, there is ample evidence in the record to support the finding of the trial court that Herbertson’s agent was negligent, that such was a proximate cause of Glenda Sue’s death and that Glenda Sue was herself without negligence. This being the case, these findings should not be distrubed by us on review.

In their complaint the Russells alleged “that as a result of the unlawful and negligent act of the defendant’s agent, the plaintiffs were denied the right to the earnings of Glenda Sue during her minority and further denied the right to look to her for assistance in their declining years.” Accordingly, the Russells prayed for judgment in the amount of $50,000, claiming that the statutory limit of $25,000 was “a deliberate violation of the Colorado Constitution and the Federal Constitution.” The trial court entered judgment for $25,000. The Russells assign no error to the award made by the trial judge, hence the contention that the statutory $25,000 limitation is unconstitutional is not properly before us.

Careful analysis of the meager and very sketchy testimony bearing on the issue of damages convinces us that the award of $25,000 was grossly excessive and under well established principles cannot be permitted to stand.

Ames and Eva Russell, the natural and surviving parents of Glenda Sue, were respectively 42 and 41 years of age as of the date of trial. They maintained their family home in Athens, Tennessee, where Amos had seasonal employment with a sawmill and his average annual earnings were $600 to $700. Eva, who was not in the best of health, had no outside employment, her full time being occupied in running the Russell household. The Russells had eleven children, two of whom died during childbirth, and following Glenda Sue’s unfortunate death eight living children remained. The four oldest children were all girls, and each had married at about the age of sixteen. The Russells testified that on occasion these four had made some financial contribution to them, but they were unable to give exact figures as to amounts, with one exception where a daughter had given them $200, which sum was apparently used to get the Russells to Colorado for the trial.

Glenda Sue was described as a more-or-less typical six year old child, in apparent good health, and she was said to be both dutiful and loving in her relationship with her parents. At the time of the accident she was “staying,” if not indeed living, with an aunt and uncle who resided on South Bryant Street. The Russells indicated that because of their large family and meager income Glenda Sue had spent almost two years of her life with relatives, away from the family home, and for almost one year immediately prior to August 2, 1959 had apparently been with her aunt and uncle in Colorado.

On this state of the record the trial court specifically-noted that it was “difficult to fairly assess the value of a human life — in fact impossible,” but after this candid confession proceeded with no hesitation and little explanation to enter judgment for the Russells in the amount of $25,000. This was error.

Colorado has long held to the rule that the damages to be awarded in a wrongful death case are compensatory only, and not exemplary in the sense that they are imposed as a penalty against the wrongdoer. Nor are they a solatium for the grief of the living occasioned by the death of their relative, “however dear.”

In Pierce v. Conners, 20 Colo. 178, 37 Pac. 721 it was held: “The true measure of compensatory relief in an action of this kind, under the act of 1877, supra, is a sum equal to the net pecuniary benefit which plaintiff might reasonably have expected to receive from the deceased in case his life had not been terminated by the wrongful act, neglect or default of the defendant. Such sum will depend on a variety of circumstances and further contingencies, and will, therefore, be difficult of exact ascertainment; but the damages to be awarded in each case may be approximated by considering the age, health, condition of life, habits of industry or otherwise, ability to earn money, on the part of the deceased, including his or her disposition to aid or assist the plaintiff; not only the kinship or legal relation between the deceased and the plaintiff, but the actual relations between them as manifested by acts of pecuniary assistance rendered by the deceased to the plaintiff, and also contrary acts may be taken into consideration. But it must be borne in mind that the recovery allowable is in no sense a solatium for the grief of the living occasioned by the death of the relative or friend, however dear. It is only for the pecuniary loss resulting to the living party entitled to sue resulting from the death of the deceased that the statute affords compensation. This may seem cold and mercenary, but it is unquestionably the law.”

“Net pecuniary loss” has been construed so as to include not only the loss to the parent of the services and earnings which they could have reasonably expected from their child during his or her minority, less their expenditures for his or her maintenance, but also includes the loss of services and support which they could have reasonably anticipated during their “declining years,” but for the untimely death. See Kansas & Pacific Railway Co. v. Lundin, Adm. 3 Colo. 94 and St. Luke’s Hospital Association v. Long, 125 Colo. 25, 240 P. (2d) 917.

Granted that damages in a wrongful death case need not and generally cannot be proven with mathematical certainty, still there must be some evidence to prima facie establish with at least a reasonable degree of certainty the damages flowing from the wrongful death. In the instant case we are reluctantly, but inexorably, forced to the conclusion that the evidence pertaining to damage is legally insufficient to support the monetary award'of $25,000.

The suggestion that this Court should depart from its prior pronouncements defining the measure of damages recoverable under our wrongful death statute would do utter violence to the well-established rule of statutory construction that when a legislature repeatedly re-enacts a statute which has theretofore received a settled judicial construction, there can be no doubt as to the legislative intent, and in such circumstances it must be considered that the particular statute is re-enacted with the understanding that there be adherence by the judiciary to its former construction. See Harvey, et al., v. Travelers Insurance Co., 18 Colo. 354, 32 Pac. 935; Lyons, Administratrix, v. Egan, 110 Colo. 227, 132 P. (2d) 794; and School District No. 1 of Arapahoe County v. Hastings, 122 Colo. 1, 220 P. (2d) 361. Nor are we impressed with the further suggestion that our prior decisions on this point are “unconstitutional.” It should never be forgotten or overlooked that at the common law there was no action for wrongful death, as such, and but for our wrongful death statute the Russells would have no claim against Herbertson for the wrongful death of their child.

Accordingly, the judgment is affirmed as to the liability of defendants, and reversed on the matter of damages, and the cause remanded for a new trial on the issues of damages only.

Mr. Justice Frantz specially concurs.

Mr. Justice Moore and Mr. Justice Pringle dissent.