Selders v. Armentrout ( 1973 )

McCown, J.

This is an action by Earl and Ila Selders to recover damages for the wrongful deaths of three of their minor children. The children were killed in an automobile accident. The jury found the defendants Charles and William Armentrout negligent and returned a verdict against them for the exact amount of the medical and funeral expenses of the three children. The parents have appealed.

The sole issue on this appeal involves the proper elements and measure of damages in a tort action in Nebraska for the wrongful death of a minor child. The court essentially instructed the jury that except for medical and funeral expenses, the damages should be the monetary value of the contributions and services which the parents could reasonably have expected to receive from the children less the reasonable cost to the parents of supporting the children.

The defendants contend that the measure of damages is limited to pecuniary loss and that the instructions to the jury correctly reflect the measure and elements of damage. The plaintiffs assert that the loss of the society, comfort, and companionship . of the children are proper and compensable elements of damage, and that evidence of amounts invested or expended for the nurture, education, and maintenance of the children before death is proper.

An analysis of the history of our wrongful death statutes is appropriate. The statutory provision creating a cause of action for wrongful death has never contained the word “pecuniary” but only referred to an action for “damages.” That statute was section 1428, Rev. St. 1913, and is now section 30-809, R. R. S. 1943. The statute is still identical, word for word. What might be referred to as the procedural and limitation provisions were originally contained in section 1429, Rev. St. 1913, now section 30-810, R. S. Supp., 1972. In 1913, that section provided in part: “* * * the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death * * *.” In 1919, that provision was changed to read: “The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained.” Laws 1919, c. 92, § 1, p. 235. This language and the preceding portions of the statute still remain unchanged today.' In 1919, that particular language was followed by the words “and the' avails thereof shall be paid to and distributed among such persons in the same proportions as the personal property of an intestate under the in-' heritance laws.” From 1919 to 1945, the word “pecuniary” did not appear in section 30-810, R. S. 1943, nor' any amendments to it. '

In 1945, the language of section 30-810, R. S. 1943,' providing that “the avails” of a wrongful death action ■should be distributed as personal property of an estate under inheritance laws was changed to the present ■language that: “The avails thereof shall be paid to and ■distributed among the widow or widower and next of .kin in the proportion that the pecuniary loss suffered by each bears to the total pecuniary loss suffered by all such persons.” The statutory reference to “damages * * * sustained” remains unqualified and unrestricted.

It would seem clear that the word “pecuniary” as it now appears in the statute does not refer to the “damages” recoverable but only to the method of apportioning “the avails” or the amount recovered as damages in a wrongful death action.

Although the defendants assert that the measure and elements of damages recoverable in a wrongful death action are by statute limited to pecuniary loss, and this state has sometimes been placed in the category of states having statutes of that kind, the historical background demonstrates the erroneousness of that concept. The case of Ensor v. Compton, 110 Neb. 522, 194 N. W. 458, decided in 1923, after the 1919 amendment above referred to, said: “This amendment was made by the .legislature after this court had, by a long line of decisions, held that damages in this class of cases were limited under the statute to money loss or its equivalent. This change, while significant, does not provide a wide open door to all sorts of claims for damages. The loss under the statute is still a pecuniary loss.” That same case, however, allowed a recovery by a surviving husband for loss of services and companionship of his wife and said: “In states having a statute similar to our owii, it has generally been construed as permitting recovery of damages for loss of service and companionship under special circumstances where the evidence shows they have a money value.”

' It is quite apparent from an examination of the judicial decisions ánd the legal literature^ in the field, that a broadening concept of the measure and elements of damages for the wrongful death of a minor child has been in the development stage for many years. See, Annotation, 14 A. L. R. 2d 486; Speiser, Recovery for Wrongful Death, § 3:1, p. 54, et seq.; and § 4:16 to § 4:28, p. 323, et seq. Following a discussion of the rigid common law rules limiting recovery for wrongful death to the loss of pecuniary benefits, Prosser states: “Recent years, however, have brought considerable modification of the rigid common law rules. It has been recognized that even pecuniary loss may extend beyond mere contributions of food, shelter, money or property; and there is now a decided tendency to find that the society, care and attention of the deceased are ‘services’ to the survivor with a financial value, which may be compensated. This has been true, for example, not only where a child has been deprived of a parent, * * * but also where the parent has lost a child * * Prosser, Law of Torts (4th Ed.), § 127, p. 908.

The original pecuniary loss concept and its restrictive application arose in a day when children during minority were generally regarded as an economic asset to parents. Children went to work on farms and in factories at age 10 and even earlier. This was before the day of child labor laws and long before the day of extended higher education for the general population. A child’s earnings and services could be generally established and the financial or pecuniary loss which could be proved became the measure of damages for the wrongful death of a child. Virtually all other damages were disallowed as speculative or as sentimental.

The damages involved in a wrongful death case even today must of necessity deal primarily with a fictitious or speculative future life, as it might have been had the wrongful death not occurred. For that reason, virtually all evidence of future damage is necessarily speculative to a degree. The measure and elements of damage involved in a wrongful death case, however, have been excessively restrictive as applied to a minor child in contrast to an adult. Modern economic reality emphasizes the gulf between the old concepts of a child's economic value and the new facts of modern family life. To limit damages for the death of a child to the monetary value of the services which the next of kin could reasonably have expected to receive during his minority less the reasonable expense of maintaining and educating him stamps almost all modern children as worthless in the eyes of the law. In fact, if the rule was literally followed, the average child would have a negative worth. This court has already held that contributions reasonably to be expected from a minor, not only during his minority but afterwards, may be allowed on evidence justifying a reasonable expectation of pecuniary benefit. Draper v. Tucker, 69 Neb. 434, 95 N. W. 1026; Fisher v. Trester, 119 Neb. 529, 229 N. W. 901. Even with that modification, the wrongful death of a child results in no monetary loss, except in the rare case, and the assumption that the traditional measure of damages is compensatory is a pure legal fiction.

Particularly in the last decade, a growing number of courts have extended the measure of damages to include the loss of society and companionship of the minor child, even under statutes limiting recovery to pecuniary loss or pecuniary value of services less the cost of support and maintainance, or similar limitations. See, Fussner v. Andert, 261 Minn. 347, 113 N. W. 2d 355; Wycko v. Gnodtke, 361 Mich. 331, 105 N. W. 2d 118; Lockhart v. Besel, 71 Wash. 2d 112, 426 P. 2d 605; Wardlow v. City of Keokuk, 190 N. W. 2d 439 (Iowa, 1971).

In this state, the statute has not limited damages for wrongful death to pecuniary loss but this court has imnosed that restriction. For an injury to the marital relationship, the law allows recovery for the loss of the society, comfort, and companionship of a spouse. This court has allowed such a recovery for the wrongful death of a wife. See Ensor v. Compton, 110 Neb. 522, 194 N. W. 458. There is no logical reason for treating an injury to the family relationship resulting from the wrongful death of a child more restrictively. It is no more difficult for juries and courts to measure damages for the loss of the life of a child than many other abstract concepts with which they are required to deal. We hold that the measure of damages for the wrongful death of a minor child should be extended to include the loss of the society, comfort, and companionship of the child. To the extent this holding is in conflict with prior decisions of this court, they are overruled.

The trial court gave NJI No. 4.60 as to wrongful death but entirely omitted paragraph 2i dealing with companionship, counseling, and advice. That omission was probably sanctioned under our previous decisions. The plaintiffs having raised the issue of the measure of damages for the wrongful death of a minor child both in the trial court and on this appeal are entitled to, the benefit of the new rule announced in this case and should be afforded a new trial on the issue of damages only.

For the guidance of the court on retrial, we believe that evidence of expenses of birth, food, clothing, instruction, nurture, and shelter which have been incurred or were reasonably necessary to rear the child to the age he or she had attained on the date of death are not properly admissible. We conclude that the investment theory of measuring damages by the amounts expended in raising the child is inappropriate and improper.

The judgment of the trial court as to liability is affirmed, the judgment as to damages is reversed and the cause remanded for' trial on the issue of' damages only, consistent with our holding in this opinion.

Affirmed in part, and in part reversed AND REMANDED WITH DIRECTIONS.