Schneider v. Baisch

PAULSON, Justice.

This is an appeal from the judgment of the district court of Burleigh County dated December 23, 1976. The defendant, Ewald A. Baisch, appeals, asserting that the trial court erred in its computation of damages awarded to the plaintiffs, John Schneider, on his own behalf, and as personal representative of the Estate of Margaret P. Schneider, his deceased mother; and Colleen Schneider.

Only one issue is raised on appeal: whether a beneficiary’s recovery for death by wrongful act is limited to the period of such beneficiary’s actual survival lifetime if such lifetime is known at the time of trial; or whether recovery may be allowed for the period of such beneficiary’s actuarial life expectancy at the time of the decedent’s death, ignoring the beneficiary’s actual survival lifetime. The question is one of first impression in this jurisdiction.

The instant case arose from an automobile accident which occurred on May 2,1975, involving vehicles driven by Baisch and Henry H. Schneider, the decedent herein. Henry Schneider was survived by his wife Margaret P. Schneider, age 56, and two adult children, John and Colleen Schneider, ages 22 and 19 respectively. Margaret Schneider died of cancer on March 29,1976, nearly eleven months after the accident in which her husband was killed, and prior to the trial of the instant action. Her illness had been originally diagnosed a few months prior to her husband’s death.

This action was brought by John Schneider, on his own behalf and as personal representative of the Estate of Margaret P. Schneider, pursuant to § 32-21-05, N.D. C.C., and by Colleen Schneider. At the trial of this action, Baisch admitted liability pursuant to contractual stipulation that the Schneiders would not seek damages in excess of $50,000.00. Following the trial on the issue of damages, the trial court awarded the Schneiders damages in the amount of $50,000.00 — awarding the estate of Margaret P. Schneider the sum of $41,666.67; Colleen Schneider the sum of $9,600.00, reduced to $8,333.33 by reason of the stipulated judgment limit; and did not award any damages to John Schneider.

It is Baisch’s contention on appeal that the trial court’s findings as to damages incurred by the estate of Margaret Schneider were induced by an erroneous view of the law awarding damages upon the normal life expectancy of a woman 56 years of age and not upon Margaret Schneider’s actual survival lifetime, i. e., eleven months.

This court will not disturb findings made by a trial court unless they are clearly erroneous, either upon a clear demonstration that they are without substantial evi-dentiary support or that they are induced by an erroneous view of the law. Rule 52(a), N.D.R.Civ.P.; Stee v. “L” Monte Industries, Inc., 247 N.W.2d 641, 644 (N.D.1976); Fine v. Fine, 248 N.W.2d 838, 841 (N.D.1976).

In the instant case, it is evident that the trial court allowed recovery of damages on behalf of the estate of Margaret Schneider for a period longer than the time of her actual survival, even though the trial court failed to include the legal bases for its findings of damages in its conclusions of law. The trial court, in its memorandum opinion stated:

But counsel for the defendant questions whether recovery can be had on behalf of Margaret Schneider for a period longer than the period of her survival. I conclude that she can, irrespective of her early death, for the reason that her cause of action arose immediately upon the death of her husband.”

The trial court went on to state:

“. . . In addition, were courts to consider happenings subsequent to wrongful death in arriving at awards, it would place conjecture upon and limit recovery in all cases of this kind, as well as in many other cases wherein recovery was sought based upon negligence.”

Finally, the trial court stated:

“Even if the Court were to assume the more conservative posture, some evidence would have had to have been offered indicating a life expectancy of the spouse to be shorter than that of the calculated life expectancy of the decedent. Lacking this evidence, it must be assumed that Mrs. Schneider would have lived at least as long as her husband would have lived had he not suffered wrongful death. This being true, it is not necessary for the Court to calculate with any certainty the amount which Mrs. Schneider would have received had Henry Schneider lived out his life expectancy, since the amount which she would have received is far in excess of the $35,000 yet to be dealt in.”

We find nothing in the trial court’s findings of fact, conclusions of law, and order for judgment that would indicate, as counsel for the Schneiders urges, that the trial court abandoned this view of the law or that it played no part in the trial court’s findings on damages incurred by the Schneiders.

North Dakota’s death by wrongful act law, Chapter 32-21, N.D.C.C., awards damages to a restricted class of beneficiaries, based on the loss suffered by the beneficiaries, and not on the loss sustained by the decedent’s estate. § 32-21-02, N.D.C.C. Thus, the probable contributions of the decedent to a beneficiary are the bases for a beneficiary’s recovery. Although under such a statutory structure, the life expectancy of both the decedent and the beneficiary are relevant factors, a beneficiary’s recovery is limited to an award based on the life expectancy of the shorter of the decedent’s or the beneficiary’s life expectancy, because no contribution to the beneficiary can be presumed beyond the actuarial life expectancy of either the decedent or the beneficiary.

A special issue arises when the beneficiary dies prior to the trial of the action for death by wrongful act and the legal representative of the beneficiary’s estate brings the action for the benefit of the beneficiary’s estate pursuant to § 32-21-05, N.D.C.C. In such an instance, the element of speculation regarding the joint life expectancies of the decedent and the beneficiary is removed and damages may be awarded based on the period by which the beneficiary actually survived the decedent. From our perusal of the cases, annotations, and treatises addressing the question before this court, we conclude that under our death by wrongful act law, a beneficiary’s recovery is limited to the beneficiary’s actual period of survival under such circumstances. Adams v. Sparado, 196 S.E.2d 647 (W.Va.1973); Wakefield v. Government Employees Insurance Co., 253 So.2d 667 (La.App.1971), writ denied, 260 La. 286, 255 So.2d 771 (1972); Annot., 43 A.L.R.2d 1291 (1955); Annot., 13 A.L.R. 225 (1921); 1 Stuart M. Speiser, Recovery for Wrongful Death, § 8.21 (2d ed. 1975). Having determined that the findings of the trial court as to damages awarded were induced by an erroneous view of the law and being unable to determine the effect such error had on the trial court’s award of damages to the Schneiders, we remand the case to the trial court for a new trial on the issues of damages to John Schneider, on his own behalf and as personal representative of the Estate of Margaret P. Schneider, his deceased mother, and Colleen Schneider.

Judgment reversed and case remanded for new trial on the issues of damages.

ERICKSTAD, C. J., and PEDERSON and SAND, JJ., concur.