Brewer v. Rowe

¶1(concurring). — I concur in the result reached in the per curiam opinion, but feel that additional facts should be stated and that prior decisions should be reviewed.

¶2The evidence concerning the age, character and the physical and mental development of the child has been fully reviewed in the opinion. Defendant offered no evidence on the issue of pecuniary loss and did not cross-examine either plaintiff with reference to the reasonable cost of the child’s education, support and maintenance. By cross-examination defendant did show that the child suffered from an allergy — chronic hay fever during the summers — and that his parents had expended funds for treatment and had taken him to Traverse City, Michigan, where they purchased a cottage in which to stay until the hay fever season was over. As to matters which may affect the amount of recovery for the death of a child see Spalding v. Robert*603son, 357 Mo. 37, 206 S.W. (2d) 517, 523; Oliver v. Morgan (Mo. Sup.), 73 S.W. (2d) 993, 997; Marx v. Parks (Mo. App.), 39 S.W. (2d) 570, 575.

¶3The form of the instruction submitting the issue of damages has been reviewed in the opinion and reference has been made to the fact the defendant requested no instructions supplementary to or explanatory of Instruction 4. No cautionary instruction on this issue was requested or given. See Montgomery v. Ross (Mo. Sup.), 218 S.W. (2d) 99, 103. No issue was sought to be submitted with “regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.” Sec. 537.090, supra; Spalding v. Robertson, supra (206 SW. (2d) 517, 521). It was under such circumstances that the jury returned a verdict for $15,000. That verdict has, in effect, been approved by the trial court, since a new trial was granted solely for alleged error in giving Instruction 6, and the assignments in the motion for new trial with reference to an excessive verdict were overruled.

¶4Appellant now contends that “it is quite apparent the verdict was far in excess of what can be said ‘will fairly and reasonably compensate plaintiffs for the necessary pecuniary injury’ sustained by them as a result of the death of their son”; and that “the verdict was so excessive as to evince passion and prejudice on the part of the jury. ’ ’

¶5On this issue we adopt as a part of this concurring opinion that part of the commissioner’s opinion, supra, which reviewed the applicable authorities and made certain observations as follows: “But is the instant award for the wrongful death of an 11 year old boy excessive because it was for $15,000, the statutory maximum allowable ? RSMo 1949, Sec. 537.090, YAMS. , The appellate courts in this state have never held that an award in the maximum amount is excessive solely because it was the maximum allowable. Two decisions of this court intimate that the maximum amount is excessive in instances of children of tender years. In Davoren v. Kansas City, 308 Mo. 513, 273 SW 401, 40 ALR 473, this court, en bane, required a remittitur of $5,000, one-half of the then statutory maximum, in the case of a 6 year old boy. The only reason assigned was, ‘ (under previous rulings).’ Apparently the reference was to Hornbuckle v. McCarty, 295 Mo. 162, 243 S.W. 327, 25 ALR 1508, wherein Division No. 1 (in 1922) deemed a $10,000 award excessive by $5,000 in the case of a 7 year old boy. That decision appears to have been based upon the theory that the child’s earning capacity until he reached 14 would have been ‘negligible’ and that his earnings, between 14 and 21, could not have exceeded $5,000. We do not regard those decisions as authority for the proposition that an award of the maximum for the death of a child under 14 is, ipso facto, excessive, or that such an award must be reduced by the appellate court. Twenty-two years after the decision in the Davoren case, this- division held that, under *604the $10,000 limitation, an $8695 award for the death of a 9 year old boy was not excessive. Wright v. Osborn, 356 Mo. 382, 201 S.W. 2d 935.

¶6“In instances of wrongful death of an adult, the award for pecuniary loss must be ‘justified by the evidence.’ Hertz v. McDowell, 358 Mo. 383, 214 S.W. 2d 546, 551. But: ‘An estimate of the value of the prospective services of a child, too young to have developed any particular talents or aptitudes, can be reached only on considerations of the most general character. In such case, much must be left to the common sense of the jury. ’ Hornbuckle v. McCarty, 295 Mo. 162, 243 SW 327, 330, 25 ALR 1508. ‘It has been held that because of the impossibility of presenting specific proof upon every element of damage in a ease of this character that the statute invests the jury with a large measure of discretion in determining the loss suffered by a parent through the death of a minor ehild.’ MeFetridge v. Kurn (Mo. App.), 125 SW 2d 912, 919. (And see Grogan v. The Broadway Foundry Company, 87 Mo. 321, 326).

¶7“In 10 West’s Mo. Digest (including the 1951 Pocket Part), Death, Key No. 99(3), are numerous wrongful-death-of-minors cases involving remittitur by trial and appellate courts. In only eleven was remittitur required. Two [379] of these, Davoren v. Kansas City and Hornbuckle v. McCarty, supra, have already been discussed. In all the others, the minor had been contributing to its parent’s or parents’ support; and remittitur was ordered because under the evidence the amount of the award (after deducting cost of support and, in some instances, medical and funeral expenses) clearly would have exceeded the minor’s, estimated contributions during the time the parents would have been entitled to its services.1

¶8“The statute fixes a maximum award in all wrongful death cases, and this limitation applies even though the evidence in a particular case might show a pecuniary injury in excess of the maximum. As we have pointed out, our appellate courts have not hesitated to order remittitur where the affirmative evidence failed to support the award made for the pecuniary injury. But, in instances of young children, the difficulty of direct proof requires that determination of pecuniary injury be left in a large measure to the jury’s common sense; and, of necessity, the jury’s award must be based, not upon direct, positive evidence, but upon probabilities which the jury might reasonably find *605exist, considering the child’s age, condition, health, mentality, personality and perspective, and the parents’ ages, attitude a,nd circumstances.

¶9“No jury could predict, with certainty, the probabilities as to Larry Brewer’s future, nor precisely fix plaintiffs’ pecuniary loss. But the jury, even without specific evidence thereof, could have reasonably concluded that the parents’ ages and health were such that the life expectancy of both parents extended beyond the time Larry would have attained his majority. The jury could also have reasonably concluded that, in all reasonable probability, plaintiffs sustained a substantial pecuniary injury by reason of Larry’s death.”

¶10Further, pecuniary loss could be inferred from Larry’s death and his relationship to the plaintiffs. In Sharp v. National Biscuit Co., 179 Mo. 553, 561, 78 S.W. 787, the contention was made “that there was no proof of the earning capacity of the child nor the ages of the parents” and the court said the cases “hold that proof of that character is unnecessary, that it would be mere matter of opinion, and that the jury would have to fix the amount anyway. ’ ’ And see Franke v. The City of St. Louis, 110 Mo. 516, 527, 19 S.W. 938; McCullough v. W. H. Powell Lmbr. Co., 205 Mo. App. 15, 216 S.W. 803, 807; Williams v. Hines (Mo. App.), 229 S.W. 414, 416; Dalton v. St. Louis Smelting & Refining Co., 188 Mo. App. 529, 174 S.W. 468, 470 (2).

¶11In this case the record affirmatively, shows medical, ambulance and funeral bills in the sum of $816.00 incurred by plaintiffs on account of the death of their son. Such expenses could be considered as part of “the necessary injury resulting from such death.” See Missouri cases cited in Anno. 14 A.L.R. (2d) 485, 536. Plaintiffs sustained their burden of proof on the issue of damages.

¶12It was for the jury in the first instance to fix the amount of plaintiffs’ damages and the verdict has, in effect, been approved by the trial court. On the record presented in this case there is no sound legal basis on which this court can say the verdict is excessive or that it is not sustained by the evidence. There is no substantial evidence in the record binding upon plaintiffs [380] which would require a remittitur. The amount is within the limits fixed by the legislature and, under the circumstances of this record, does not show passion or prejudice.

¶13In this situation, we approve the statement in Wright v. Osborn, 356 Mo. 382, 201 S.W. (2d) 935, 940 in saying: “No formula exists by which it may be determined whether a jury award of damages is excessive under the instant circumstances. Courts determine this character of question in each case upon its own facts, due consideration being given to uniformity of decision, economic conditions, expressed legislative policy and all pertinent factors. The test we must *606finally meet, however, is whether the size of the verdict is such as to shock the conscience of the court, or whether it is within the bounds of reason. ’ ’

¶14As stated, I concur in the result reached in the per curiam opinion.