DOYLE, Justice.
This is an action for wrongful death pursuant to SDCL 21-5. The decedent was a seven-year-old girl who was fatally injured in an automobile-pedestrian accident in Butte County, South Dakota, on September 16, 1969. The action was brought by her father, Darrell C. Anderson, as special administrator of her estate. Prior to trial, the defendant moved for a change of venue on the ground that an impartial trial could not be had in Butte County. The defendant contended that the acquittal by a jury in November of 1969 of the second degree manslaughter charges, which had been brought against him in regard to the same accident herein involved, had caused adverse and hostile reactions of the people of the community. These reactions, he alleged, made it impossible to obtain a fair and impartial trial. The motion was denied.
Before the jury was empaneled, the defendant moved to have those prospective jurors, who had heard a similar wrongful-death action in November 1970, disqualified on the ground that their prior exposure to the law in this area may have a prejudicial effect upon the present case. This motion was also denied.
The defendant admitted liability and the issue of damages alone was tried to the jury. A verdict was returned in favor of the [114] plaintiff in the sum of $16,500. The defendant made a motion for a new trial upon the ground that the trial court erred in its instructions to the jury concerning the elements of damage they were to consider and, therefore, the verdict reached was excessive. This motion was also denied and the defendant appeals.
The first issue considered involves the motion for a change of venue. Both parties presented affidavits and other evidence to the judge supporting their respective positions in regard to the question of whether the defendant could obtain a fair and impartial trial.
SDCL 15-5-11, in applicable part, provides that:
“The court may change the place of trial * * *:
*
(2) Where there is reason to believe that an impartial trial cannot be had therein * *
It is, therefore, discretionary on the part of the trial judge whether the circumstances warrant a change of venue. In the absence of clear abuse of its discretion, this court will not interfere with a trial court’s exercise thereof. Root v. Bingham, 1910, 26 S.D. 118, 128 N.W. 132. The civil case was brought to trial over a year after the appellant had been acquitted on the criminal charges. It was the trial judge’s opinion that this passage of time was sufficient to dim the memories of the prospective jurors. An examination of the record discloses nothing to indicate any abuse of discretion in this regard and we accordingly uphold the order denying the motion for change of venue.
The question involving the jury panel also involves the discretion of the trial judge. The voir dire examination of the jury panel as it appears in the record discloses that the participation of certain jurors in a former wrongful death case would not affect their decision in the present one. Again we find no abuse of discretion and uphold the denial of the motion to disqualify certain jurors.
[115] The final issue considered involves whether the trial court erred in giving what is in substance South Dakota Pattern Jury Instruction, Civil, 31.02 as its Instruction No. 6. The questioned portion of that instruction is as follows:
“You may also consider what pecuniary loss, if any, plaintiffs have suffered and will suffer in the future with reasonable certainty, by being deprived of advice, assistance, comfort; and protection of the child.”
It is the defendant’s contention that in a wrongful death action in South Dakota there is no right to recover for the loss of companionship and association of the decedent and, therefore, the trial court erred in utilizing the above language in its instructions.
SDCL 21-5-7 provides:
“Damages proportionate to pecuniary injury to beneficiaries. — In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”
Tracing the history of this statute we see that it had its genesis in § 677, 1877 Code of Civil Procedure, wherein a version of the Lord Campbell Act was adopted which allowed a claim for punitive damages for wrongful death. This statute was amended in 1887 by Chap. 33, § 5499, Comp.Laws by the striking of the word “punitive”. We first construed the statute in Belding v. Black Hills & Ft. P. R. Co., 1892, 3 S.D. 369, 53 N.W. 750, holding that the statute gave the beneficiaries the right to recover “the damages resulting to them from the loss of the life of the deceased.” Following this interpretation, it was held in Smith v. Chicago, Mil. & St. P. Ry. Co., 1895, 6 S.D. 583, 62 N.W. 967, that the measure of damages recoverable was only the probable “pecuniary loss” suffered by the beneficiaries. In 1909 the legislature codified the term “pecuniary injury”. Ch. 301, S.L.1909. The 1909 law was then carried forward in Rev.Code of 1919, § 2931 and SDC 37.2203 verbatim. In two [116] wrongful death cases brought before the court during this period, the court ruled first in Rowe v. Richards, 1913, 32 S.D. 66, 142 N.W. 664, that recovery in a death action “is limited to loss of means of support, loss of society, comfort, and care suffered by the plaintiff in the death of the decedent.” However, in Smith v. Presentation Academy of Aberdeen, 1933, 61 S.D. 323, 248 N.W. 762, the court stated that:
“the measure of damage is the reasonable expectation of pecuniary advantage to those entitled to recover. This statute does not authorize recovery for loss of society or grief and anguish caused by the death, nor for the pain and suffering of the decedent prior to death.”
This latter position was adopted by the court in Tufty v. Sioux Transit Co., 1943, 69 S.D. 368, 10 N.W.2d 767; Hodkinson v. Parker, 1944, 70 S.D. 272, 16 N.W.2d 924, and McCleod v. Tri-State Milling Co., 1946, 71 S.D. 362, 24 N.W.2d 485, where this court held in all three cases that the amount of recovery must be based upon expenses necessarily incurred and a reasonable expectation of benefits which would have resulted from the continued life of the deceased.
In 1947 the wrongful death statute was again amended removing the word “pecuniary” and inserting the word “all” in its place, Ch. 173, § 1, S.L.1947, thus enlarging the measure of damages which could be recovered. Under this language, the court in Simons v. Kidd, 1950, 73 S.D. 306, 42 N.W.2d 307, found that:
Free access — add to your briefcase to read the full text and ask questions with AI
DOYLE, Justice.
This is an action for wrongful death pursuant to SDCL 21-5. The decedent was a seven-year-old girl who was fatally injured in an automobile-pedestrian accident in Butte County, South Dakota, on September 16, 1969. The action was brought by her father, Darrell C. Anderson, as special administrator of her estate. Prior to trial, the defendant moved for a change of venue on the ground that an impartial trial could not be had in Butte County. The defendant contended that the acquittal by a jury in November of 1969 of the second degree manslaughter charges, which had been brought against him in regard to the same accident herein involved, had caused adverse and hostile reactions of the people of the community. These reactions, he alleged, made it impossible to obtain a fair and impartial trial. The motion was denied.
Before the jury was empaneled, the defendant moved to have those prospective jurors, who had heard a similar wrongful-death action in November 1970, disqualified on the ground that their prior exposure to the law in this area may have a prejudicial effect upon the present case. This motion was also denied.
The defendant admitted liability and the issue of damages alone was tried to the jury. A verdict was returned in favor of the [114] plaintiff in the sum of $16,500. The defendant made a motion for a new trial upon the ground that the trial court erred in its instructions to the jury concerning the elements of damage they were to consider and, therefore, the verdict reached was excessive. This motion was also denied and the defendant appeals.
The first issue considered involves the motion for a change of venue. Both parties presented affidavits and other evidence to the judge supporting their respective positions in regard to the question of whether the defendant could obtain a fair and impartial trial.
SDCL 15-5-11, in applicable part, provides that:
“The court may change the place of trial * * *:
*
(2) Where there is reason to believe that an impartial trial cannot be had therein * *
It is, therefore, discretionary on the part of the trial judge whether the circumstances warrant a change of venue. In the absence of clear abuse of its discretion, this court will not interfere with a trial court’s exercise thereof. Root v. Bingham, 1910, 26 S.D. 118, 128 N.W. 132. The civil case was brought to trial over a year after the appellant had been acquitted on the criminal charges. It was the trial judge’s opinion that this passage of time was sufficient to dim the memories of the prospective jurors. An examination of the record discloses nothing to indicate any abuse of discretion in this regard and we accordingly uphold the order denying the motion for change of venue.
The question involving the jury panel also involves the discretion of the trial judge. The voir dire examination of the jury panel as it appears in the record discloses that the participation of certain jurors in a former wrongful death case would not affect their decision in the present one. Again we find no abuse of discretion and uphold the denial of the motion to disqualify certain jurors.
[115] The final issue considered involves whether the trial court erred in giving what is in substance South Dakota Pattern Jury Instruction, Civil, 31.02 as its Instruction No. 6. The questioned portion of that instruction is as follows:
“You may also consider what pecuniary loss, if any, plaintiffs have suffered and will suffer in the future with reasonable certainty, by being deprived of advice, assistance, comfort; and protection of the child.”
It is the defendant’s contention that in a wrongful death action in South Dakota there is no right to recover for the loss of companionship and association of the decedent and, therefore, the trial court erred in utilizing the above language in its instructions.
SDCL 21-5-7 provides:
“Damages proportionate to pecuniary injury to beneficiaries. — In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”
Tracing the history of this statute we see that it had its genesis in § 677, 1877 Code of Civil Procedure, wherein a version of the Lord Campbell Act was adopted which allowed a claim for punitive damages for wrongful death. This statute was amended in 1887 by Chap. 33, § 5499, Comp.Laws by the striking of the word “punitive”. We first construed the statute in Belding v. Black Hills & Ft. P. R. Co., 1892, 3 S.D. 369, 53 N.W. 750, holding that the statute gave the beneficiaries the right to recover “the damages resulting to them from the loss of the life of the deceased.” Following this interpretation, it was held in Smith v. Chicago, Mil. & St. P. Ry. Co., 1895, 6 S.D. 583, 62 N.W. 967, that the measure of damages recoverable was only the probable “pecuniary loss” suffered by the beneficiaries. In 1909 the legislature codified the term “pecuniary injury”. Ch. 301, S.L.1909. The 1909 law was then carried forward in Rev.Code of 1919, § 2931 and SDC 37.2203 verbatim. In two [116] wrongful death cases brought before the court during this period, the court ruled first in Rowe v. Richards, 1913, 32 S.D. 66, 142 N.W. 664, that recovery in a death action “is limited to loss of means of support, loss of society, comfort, and care suffered by the plaintiff in the death of the decedent.” However, in Smith v. Presentation Academy of Aberdeen, 1933, 61 S.D. 323, 248 N.W. 762, the court stated that:
“the measure of damage is the reasonable expectation of pecuniary advantage to those entitled to recover. This statute does not authorize recovery for loss of society or grief and anguish caused by the death, nor for the pain and suffering of the decedent prior to death.”
This latter position was adopted by the court in Tufty v. Sioux Transit Co., 1943, 69 S.D. 368, 10 N.W.2d 767; Hodkinson v. Parker, 1944, 70 S.D. 272, 16 N.W.2d 924, and McCleod v. Tri-State Milling Co., 1946, 71 S.D. 362, 24 N.W.2d 485, where this court held in all three cases that the amount of recovery must be based upon expenses necessarily incurred and a reasonable expectation of benefits which would have resulted from the continued life of the deceased.
In 1947 the wrongful death statute was again amended removing the word “pecuniary” and inserting the word “all” in its place, Ch. 173, § 1, S.L.1947, thus enlarging the measure of damages which could be recovered. Under this language, the court in Simons v. Kidd, 1950, 73 S.D. 306, 42 N.W.2d 307, found that:
“The mental anguish and the loss of companionship susceptible of monetary valuation were * * * proper elements to be considered in estimating the damages sustained by the parents.”
See also, Western Surety Co. v. Addy, 1950, 73 S.D. 322, 42 N.W.2d 660.
In Lanning v. Schulte, 1967, 82 S.D. 528, 149 N.W.2d 765, decided under the 1947 law, this court in reversing an order denying a new trial, stated:
[117] “An award of slightly more than $500 to compensate for future pecuniary loss, mental shock and suffering, wounded feelings, grief and sorrow, loss of companionship and deprivation of society and love, in our opinion, is so shockingly low that it cannot be permitted to stand.”
The 1967 legislature enacted the present statute changing the term “all injury” back to “pecuniary injury”. SDCL 21-5-7.
(There were other prior amendments, but all related to monetary increases on the limit of recovery.)
It is the contention of the defendant that it was the intention of the legislature iñ making the 1967 changes to return to the more restrictive measure of damages in wrongful death actions of prior times. We believe that the wrongful death statute is remedial in character and, therefore, should be construed liberally in light of current social conditions. We, therefore, do not feel constrained to follow our past decisions.
In cases involving this problem from other jurisdictions we note the landmark case of Wycko v. Gnodtke, 1960, 361 Mich. 331, 105 N.W.2d 118. In Wycko v. Gnodtke, supra, the Michigan court rejected the child-labor or economic-value measure of pecuniary loss suffered through the death of a minor child, stating:
“The pecuniary value of a human life is a compound of many elements. The use of material analogies may be helpful and inoffensive. Just as with respect to a manufacturing plant, or industrial machine, value involves the costs of acquisition emplacement, upkeep, maintenance service, repair, and renovation, so, in our context, we must consider the expenses of birth, of food, of clothing, of medicines, of instruction, of nurture and of shelter. Moreover, just as an item of machinery forming part of a functioning industrial plant has a value over and above that of a similar item in a showroom, awaiting purchase, so an 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 [118] 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. We are, it will be noted, restricting the losses, to pecuniary losses, the actual money value of the life of the child, not the sorrow and anguish caused by its death. This is not because these are not suffered and not because they are unreal. The genius of the common law is capable, were it left alone, of ascertaining such damages, but the legislative act creating the remedy forbids. Food, shelter, clothing, and companionship, however, are obtainable on the open market, have an ascertainable money value. Finally if, in some unusual situation, there is in truth, or reasonably forthcoming, a wage-profit capability in the infant (an expectation of an excess of wages over keep, the measure heretofore employed) the loss of such expectation should not be disregarded as one of the pecuniary losses suffered. In such case, however, the assessment is made as a matter of fact and not of fiction. It is true, of course, that there will be uncertainties in all of these proofs, due to the nature of the case, but we are constrained to observe that it is not the privilege of him whose wrongful act caused the loss to hide behind the uncertainties inherent in the very situation his wrong has created.”
Wycko v. Gnodtke, supra, was purportedly overruled by Breckon v. Franklin Fuel Company, 1970, 383 Mich. 251, 174 N.W.2d 836. However, the later case of Smith v. City of Detroit, 1972, 388 Mich. 637, 202 N.W.2d 300, stated that the Breckon court was incorrect in its interpretation of Wycko and held the “loss of companionship is an element of pecuniary damages under [their] wrongful death act * * *.”
The Minnesota Supreme Court, recognizing its pecuniary-loss measure of damages was antiquated when applied to present-day needs and experience, stated in Fussner v. Andert, 1962, 261 Minn. 347, 113 N.W.2d 355, that:
“We agree with the plaintiff that the strict pecuniary-loss measure of damages, which limits recovery to [119] the parent for the loss of earnings, contributions, and services in terms of dollars which the survivor might have expected to receive during the lifetime of the child, is unduly restrictive and its meaning should be expanded to conform to present-day needs and experience. As applied to a child, the narrow pecuniary-loss test, which excludes loss of aid, comfort, and society, may have met the needs of the community in the last century when our society was largely rural and a child might be considered an economic asset. The changes which have occurred in the social and economic life of the community since the test was first adopted require a reappraisal of its meaning and application. We must view the death-by-wrongful-act statute in the light of present-day conditions. It must be conceded that the majority of today’s children render far less service to their parents than did children in the last century when the test was formulated. Because of child-labor laws and the great increase in school and college attendance, fewer children work outside the home. It should be agreed that generally the child’s earnings may go no further than to supplement the parent’s considerable financial outlay in educating and rearing him to say as a general rule that a parent sustains a financial loss from the death of a minor child is not realistic. When the cost to the parent of raising and educating the child is considered, it is apparent that the strict adherence to the pecuniary-loss test would in many instances prevent any recovery whatever. Probable cost of raising him to maturity and educating him would be far greater than the provable value of his services. We cannot agree that loss of earnings, contributions, and services in terms of dollars represents the only real loss the parent sustains by the death of his child. With the passage of time the significance of money loss has been diminished. Conversely, there 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 which were once considered to be only of sentimental character.”
[120] Washington also modernized its measure of damages in wrongful death actions wherein the decedent was a child. In Lockhart v. Besel, 1967, 71 Wash.2d 112, 426 P.2d 605, the court said:
“economic conditions and our way of life have so significantly changed that to say the pecuniary value of the loss, of a minor child’s services over and above his cost of support and maintenance, except in rare cases, is not a pure fiction can no longer be ignored. We must now conclude that to award more than nominal damages in every case where we limit damages to the loss of a minor child’s earnings above the cost of his support and maintenance, is an affront to reason and logic.
* * * * * *
“We hold that the measure of damages * * * should be extended to include the loss of companionship of a minor child during his minority without giving any consideration for grief, mental anguish or suffering of the parents by reason of such child’s wrongful death.”