Williams v. Monarch Transportation, Inc. , 238 Neb. 354 ( 1991 )

Shanahan, J.

In the district court for Sarpy County, William O. Williams, personal representative of the estate of Kari L. Williams, brought a wrongful death action against Monarch Transportation, Inc., regarding a collision between an automobile driven by Kari L. Williams and a truck owned and operated by Monarch. The collision resulted in Kari’s hospitalization and eventual death on October 14, 1987. After Monarch admitted liability for the collision and Kari’s death, only the question of damages was submitted to the jury, which awarded $15,804.46 for Kari’s hospital and funeral expenses and $250,000 for pecuniary loss sustained by Kari’s next of kin.

Monarch appeals and contends that the $250,000 verdict is contrary to law, unsustainable under the evidence, and the product of passion, prejudice, speculation, and sympathy.

Kari, who died at age 24, was survived by her parents, Shirley Ann and William “Bill” Williams, who were near 50 years of age at the time of Kari’s death. Shirley Ann and Bill Williams have been married for 31 years, throughout which they have lived in Springfield, Nebraska. Both Shirley Ann and Bill Williams are employed. Kari had an older sister, two younger sisters, and an older brother.

Until a year before her death, Kari had lived with her parents in their home, where the Williams children had grown up. As the middle child in the family, Kari was the “mediator,” one who would always “smooth things over” when childhood quarrels developed.

According to one of Kari’s junior high school teachers, Kari was “[v]ery positive. She was a very bright, very upbeat, cheerful type of young lady, kind of a spark plug with a group, I guess. Always kind of kept the group happy and cheerful and doing positive and constructive things.”

When Kari attended Platteview High School near Springfield, she also participated in volleyball, basketball, and track. Describing Kari’s involvement in those extracurricular activities, Robert Icenogle, a Platteview teacher, characterized Kari: “She gave her best. She would make any sacrifice that was needed or called for . . . .” Also, Icenogle noted that Kari was family oriented and frequently talked about her family’s activities. Icenogle observed that there was a “[v]ery close relationship” between Kari and her parents, with whom she was “always very close, very supportive.”

The day after she was graduated from high school, Kari began employment in the office of Timmerman Feedyards near Springfield, where she earned $19,000 annually. Gerald Timmerman, owner of the feedyard, described Kari as an “extraordinary” employee who displayed “[ujnlimited” potential and a combination of “a business manner and a very personal manner ... a talent, you know, that God gives somebody, you don’t develop that.” According to Timmerman, “the only thing that ever meant more to [Kari] than her work and her friends was her family.” In Timmerman’s view, the Williams family was the “upmost first” priority in Kari’s life.

About a year before her death, Kari arranged to rent a house from her brother, Mike. That house was located 1 mile from the home of Shirley Ann and Bill Williams. According to Mike, Kari felt it was time to leave the family home, but she wanted to live near her parents “so she could always stop in.” After Kari moved, she visited her parents almost daily, sometimes stopping by and saying “just checking on you,” but many times staying for dinner and late into the evening, or even overnight. In the words of Bill Williams, Kari was “[ajlways ... in contact with you no matter what.” As Mike Williams recounted, “There [were] a lot of times it still looked like [Kari] lived there.” According to Kari’s mother and father, they “saw her just as much after she was gone as [they] did while she lived there.”

As far as family events were concerned, Kari was the “great organizer.” She cooked, set up tables, decorated, and cleaned her parents’ home for large holiday gatherings. When a family birthday was approaching, Kari always contacted each family member to remind them, or to tell them about a family celebration which had been planned. Kari “went a lot of places” with Shirley Ann and Bill Williams, including a vacation trip to Minnesota in the summer preceding Kari’s death. On weekends, according to Bill Williams: “It was a Sunday ritual... we [Kari and her parents] went to church every Sunday morning. After church, we go out and have breakfast together and that was just the way it was on Sunday mornings.” Kari and her mother shopped together almost every weekend and often had lunch together during the week. As Shirley Ann Williams expressed: “Kari lived at home as an adult probably more than the other girls .... I got to know her more on the basis of a friend. She became a friend as well as a daughter. She was probably my best friend.” Although Kari moved from the family home, she continued to help her parents with various tasks, such as gardening and preparation of family gatherings. Kari’s relationship with her parents never changed before her death. As Shirley Ann Williams expressed Kari’s relationship with her parents: “If you ever needed help with anything at all, all you had to do was call Kari.”

Monarch did not cross-examine any witness who testified about Kari’s relationship with Shirley Ann and Bill Williams and her activities involving her parents. Monarch did not present any case in chief.

The court correctly instructed the jury on the elements of damages recoverable in a Nebraska wrongful death action. The jury returned its verdict for $265,804.46, including $250,000 for pecuniary loss sustained by Kari’s next of kin.

STANDARD OF REVIEW

A verdict in a civil case will be upheld on appeal unless a jury’s finding, necessary for the verdict, is clearly erroneous. See, Chadron Energy Corp. v. First Nat. Bank, 236 Neb. 173, 459 N.W.2d 718 (1990); Blanchette v. Keith Cty. Bank & Trust Co., 231 Neb. 628, 437 N.W.2d 488 (1989).

“A verdict in a civil case must be sustained if the evidence, viewed and construed most favorably to the prevailing party, is sufficient to support that verdict.” Rahmig v. Mosley Machinery Co., 226 Neb. 423, 443, 412 N.W.2d 56, 70 (1987). As expressed in Rahmig: “A verdict will not be set aside on appeal unless it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or it is clear that the trier of fact disregarded the evidence or rules of law.” 226 Neb. at 457, 412 N.W.2d at 78.

[A] verdict may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. If a verdict shocks the conscience, it necessarily follows that the verdict was the result of passion, prejudice, mistake, or some other means not apparent in the record.

Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 643, 452 N.W.2d 270, 280 (1990). Accord, Maloney v. Kaminski, 220 Neb. 55, 368 N.W.2d 447 (1985); Brahatcek v. Millard School District, 202 Neb. 86, 273 N.W.2d 680 (1979); Caradori v. Fitch, 200 Neb. 186, 263 N.W.2d 649 (1978). See, also, Neb. Rev. Stat. § 25-1142 (Reissue 1989) (vacation of verdict for award of excessive damages given under the influence of passion or prejudice).

WRONGFUL DEATH DAMAGES

Concerning the amount of recovery in a wrongful death action, Neb. Rev. Stat. § 30-810 (Reissue 1989) in pertinent part provides: “The verdict or judgment should be for the amount of damages which the persons [widow, widower, or next of kin] in whose behalf the action is brought have sustained.”

In Maloney v. Kaminski, 220 Neb. 55, 69, 368 N.W.2d 447, 458 (1985), this court stated: “We have held that a wrongful death plaintiff may only recover for a pecuniary loss, meaning a loss which has a money value.”

In relation to “pecuniary loss” and “money value,” this court has consistently recognized that in an action for wrongful death of a child, recoverable damages include parental loss of the child’s society, comfort, and companionship. See, Crewdson, supra; Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989); Garvin v. Coover, 202 Neb. 582, 276 N.W.2d 225 (1979); Selders v. Armentrout, 190 Neb. 275, 207 N.W.2d 686 (1973). See, also, Ballweg v. City of Springfield, 114 Ill. 2d 107, 120, 499 N.E.2d 1373, 1379 (1986): “When children are wrongfully killed, the parents’ investment of money and in affection, guidance, security and love is destroyed. Society recognizes the destruction of that value, whether the child is a minor or an adult.”

“The term ‘society’ embraces a broad range of mutual benefits each family member receives from the others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585, 94 S. Ct. 806, 39 L. Ed. 2d 9 (1974) (wrongful death action). Accord, Singh v. Air Illinois, Inc., 165 Ill. App. 3d 923, 520 N.E.2d 852 (1988); 1 S. Speiser, Recovery for Wrongful Death § 3:49 (2d ed. 1975). “[T]here is a growing appreciation of the true value to the parent of the rewards which flow from the family relationship and are manifested in acts of material aid, comfort, and assistance . . . " Fussner v. Andert, 261 Minn. 347, 353, 113 N.W.2d 355, 359(1961).

Quite obviously it is impossible to generalize on the extent to which persons . . . enjoy each other’s companionship and society. This is a highly personal relationship which must of necessity be decided on a case-by-case basis. When it relates to a parent and child, it depends on all the circumstances important in the lives of a particular parent and a particular child.

(Emphasis in original.) Pagitt v. City of Keokuk, 206 N.W.2d 700, 703 (Iowa 1973).

In Wycko v. Gnodtke, 361 Mich. 331, 338-40, 105 N.W.2d 118, 122-23 (1960), the Supreme Court of Michigan observed:

What, then, is the pecuniary loss suffered because of the taking of the child’s life? It is the pecuniary value of the life....

. . . [A]n individual member of a family has a value to others as part of a functioning social and economic unit. This value is the value of mutual society and protection, in a word, companionship. The human companionship thus afforded has a definite, substantial, and ascertainable pecuniary value and its loss forms a part of the “value” of the life we seek to ascertain.

Cf., Smith v City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972); Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970).

Regarding the pecuniary loss requirement for wrongful death damages, this court noted that

the word “pecuniary” is not to be construed in a strict sense, that it is difficult to determine its exact measure, and that the task of determining such must be left to the good judgment and ordinary common sense of the jurors. The law does not provide any positive, definite mathematical formula or legal rule by which a jury shall fix the amount of pecuniary loss; it must be determined upon a consideration of the circumstances of each case. [Citations omitted.] There is no requirement that there be evidence of the dollar value of companionship, counseling, or advice. It is a matter left to the sound discretion of the jury.

Maloney v. Kaminski, 220 Neb. 55, 69-70, 368 N.W.2d 447, 458 (1985). See, also, Garvin, supra (wrongful death damages are incapable of computation and are largely a matter for the jury); Selders v. Armentrout, 192 Neb. 291, 293, 220 N.W.2d 222, 224 (1974) (damages in wrongful death cases are peculiarly for the jury to determine because of the numerous contingencies involved, and “[a]t best, the verdict can only be an approximation as no yardstick exists by which the correct answer can be found with exactness”). Thus, in an action for wrongful death of a child, “money value” of parental loss is not limited to, always equated with, or necessarily dependent on deprivation of the child’s monetary contribution toward parental well-being.

According to one commentator, a wrongful death action is “sui generis” and involves placing a monetary value on a human life; hence, determination of wrongful death damages, which may elude a precise mathematical calculation, is left to a jury, which “possesses discretion, and [which] is given wide latitude to exercise its sound judgment and good sense, aided by proper instructions from the court.” 2 S. Speiser, Recovery for Wrongful Death § 9:2 at 4 (2d ed. 1975).

In a wrongful death action, damages are not recoverable for mental suffering or anguish, bereavement, or solace. Crewdson v. Burlington Northern RR. Co., 234 Neb. 631, 452 N.W.2d 270 (1990); Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989); Garvin v. Coover, 202 Neb. 582, 276 N.W.2d 225 (1979). Speiser reminds us of the difference between compensation for mental anguish, bereavement, or solace and compensation for loss of society, comfort, and companionship:

When we speak of recovery for the beneficiaries’ mental anguish, we are primarily concerned, not with the benefits they have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one.... The fundamental question in this area of damages is what deleterious effect has the death, as such, had upon the claimants? In other areas of damage, we focus on more positive aspects of the injury such as what would the decedent, had he lived, have contributed in terms of support, assistance, training, comfort, consortium, etc.

(Emphasis in original.) 1 S. Speiser, Recovery for Wrongful Death § 3:52 at 327 (2d ed. 1975).

THE VERDICT

Throughout its brief, Monarch emphasizes that nothing established Kari’s past monetary contribution to Shirley Ann and Bill Williams or indicated Kari’s prospective monetary contributions to her parents. Therefore, Monarch argues, the $250,000 verdict is excessive in this wrongful death action.

However, there is no exact fiscal formula for determination of damages recoverable for loss of society, comfort, and companionship, a loss which is not subject to some strict accounting method based on monetary contributions, past or prospective. Rather, “the society, care and attention of a deceased [family member] are ‘services’ having financial value which may be both measured and compensated.” 1 S. Speiser, supra, § 3:49 at 321.

There is nothing to contradict or undermine the evidence of Kari’s relationship with her parents, Shirley Ann and Bill Williams, or Kari’s activities which were a source of society, comfort, and companionship for her parents. Given the history of an extraordinary young woman’s very remarkable relationship with her parents, the jury in this case obviously evaluated the future by the past and, accordingly, returned its verdict to compensate for the loss caused by Kari’s death. We conclude that the Williams verdict is supported by relevant evidence and cannot conclude that the verdict resulted from passion, prejudice, or mistake. Thus, we are unable to state that the Williams verdict is excessive under the circumstances.

Affirmed.