Burns v. Brightman , 44 R.I. 316 ( 1922 )

By the majority opinion this case goes back to the Superior Court for the reason that the testimony presented to the jury did not furnish a sufficient basis upon which the damages could be properly assessed.

The cases of McCabe v. Narragansett Electric LightingCo., 26 R.I. 427, Reynolds v. Narragansett Electric LightingCo., 26 R.I. 457, and Dimitri v. Cienci Son, 41 R.I. 392, establish certain rules which must be complied with in ascertaining the amount of damages to which parties would be entitled in certain cases.

The measure of damages is the pecuniary loss sustained. The law does not recognize such damages as being in the nature of a penalty for the commission of a wrongful act on the part of a defendant.

Under the rule fixed by the above cases it is necessary to show the gross earnings and the personal expenses. The net earnings may then be ascertained by deducting the expenses from the gross amount. Taking the net result thus obtained and finding the expectation of life, the present value may be ascertained.

The plaintiffs in the case at bar offered testimony to the effect that a woman hired to perform the duties which devolved upon the deceased as a wife and mother would command a wage of fifteen dollars per week but they failed to show anything as to her personal expenses and for that reason the majority of the court finds that the jury was without evidence indispensable to the proper assessment of damages.

I make no criticism of the before-mentioned cases either as to their requirements or their applicability to situations where a pecuniary loss has been sustained.

In the present case no actual pecuniary loss has been shown. The husband and next of kin of the deceased have joined in a suit to recover such damages as have resulted to her estate by reason of her death. They are persons pointed out by the statute as entitled to sue for the benefit of her estate and nothing more.

The deceased at the time of her death was fifty-four years of age. She was a wife and mother who, during her married life, had devoted herself to her husband and children. Her services belonged to her husband and not to her estate. It was her duty to work for him, a duty imposed by the marriage relation. On the other hand, it was the duty of her husband to support her. These reciprocal duties the majority opinion acknowledges. The services which she rendered could not increase her estate nor could her expenses diminish it. She had no personal expenses which she was called upon to defray and she could not earn anything by rendering the services to her husband. Any contract which she might make with him for compensation for such services would be void.

In this situation the majority opinion holds that the husband might die first and the wife would then be obliged to support herself or that she might quit her family and become a wage earner. This is pure speculation. It cannot be inferred that the husband would predecease and there is nothing in the testimony from which any inference could be drawn that the wife would desert her family and go forth to earn her own living.

There is no statute in this state authorizing a recovery except for pecuniary loss, the majority opinion to the contrary notwithstanding. The opinion says, "Does the statute provide for the recovery of damages for the death of a married women, who at the time of the accident is not engaged in an income producing occupation but whose time and energy are devoted to the maintenance of her household and the care of her husband and children? We answer this in the affirmative." Such statute cannot be pointed out. Therefore, for this court to say that a recovery can be had for the benefit of the estate of the deceased, when the testimony clearly shows that no pecuniary loss has been or is likely to be suffered by her estate, amounts to judicial legislation.

The majority opinion says that the contention of the defendants is, "that the services of the deceased, although of value to her husband, were rendered without expectation of financial return and presumably would continue to be so given until the end of her life and consequently her estate suffered no financial loss by her untimely decease," and adds interrogatively, "But why should this presumption be made for the benefit of the wrongdoer?" The answer to that is twofold. In the first place the damages recoverable are by way of compensation for pecuniary loss and not as a penalty for wrongdoing and secondly, the only natural and reasonable presumption is that a woman fifty-four years of age who had always been devoted to her husband and family would continue to serve them, there being no suggestion of any intent or desire on her part to do otherwise.

Again the majority opinion says, speaking of a wife, "She is entitled to the benefit of her own earning capacity whenever she elects to exercise the right. In the absence of such election her services still belong to her husband and he, not she, is entitled to sue for loss of such services." She had never expressed, so far as appears, by word or act, the slightest intention or desire to avail herself of that privilege nor does it appear that she ever expressed any dissatisfaction with her situation and surroundings.

Other portions of the opinion might be discussed but I think I have said enough to clearly indicate my views. I think the case should be remitted to the Superior Court with direction to enter judgment for the defendants.