Flagtwet v. Smith

367 N.W.2d 188, 1985 S.D. LEXIS 261
South Dakota Supreme Court·Decided April 24, 1985·No. 14597, 14598·Published·Cited by 24 cases

Opinions

[189] WUEST, Acting Justice.

This appeal involves the nature, extent, and valuation of damages in a wrongful death action, pursuant to SDCL 21-5-7. We affirm in part, reverse and remand in part.

Arvid H. Flagtwet (decedent) died of injuries sustained in an automobile collision with Dawn Smith (appellant), which occurred on July 7, 1981, in Marshall County, South Dakota. In January of 1983, decedent’s surviving spouse, Beverly Flagtwet (appellee), brought a wrongful death action against appellant. Liability was not seriously disputed and the trial court held that appellant’s negligent failure to yield the right-of-way in compliance with SDCL 32-26-14 was the proximate cause of the accident and subsequent death of decedent.

Accordingly, the trial court determined the damages appellee is entitled to under SDCL 21-5-7, which provides: “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.” (Emphasis added.) The court held that when the decedent is an adult, the term “pecuniary injury” entails strictly economic loss. Appellee has filed a notice of review contending that the term also includes the loss of companionship and society. We agree.

In Anderson v. Lale, 88 S.D. 111, 121, 216 N.W.2d 152, 158 (1974), this court interpreted the term “pecuniary injury” under SDCL 21-5-7 with regard to the wrongful death of a minor child. We reasoned that if merely a child’s future earnings were considered, as against the cost of raising such child, only in rare cases would a child’s earnings be more than his cost of upbringing. We therefore held that in a wrongful death action, “wherein the decedent was a minor, it is proper for the court to instruct the jury that the loss of companionship and society, which may be expressed by, but is not limited to, the words ‘advice’, ‘assistance’ and ‘protection’ are proper elements of damage for them to consider in reaching a verdict.” 88 S.D. at 122-23, 216 N.W.2d at 158-59.

The trial court rejected our decision in Anderson as authority for the proposition that in a wrongful death action, wherein the decedent was an adult, the term “pecuniary injury” includes the loss of decedent’s companionship and society, as well as strictly economic loss. We now hold that, regardless of the age of the decedent in a wrongful death action, it is proper for the trier of fact to consider the loss of decedent’s companionship and society resulting from such death when determining the pecuniary injury to the persons for whose benefit such action is brought under SDCL 21-5-7.

That the term “pecuniary injury” is vague, ambiguous, and susceptable to judicial interpretation is apparent.1 Many courts have struggled mightily with a modern definition of the term. See, e.g., Smith v. City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972); Breckon v. Franklin Fuel Company, 383 Mich. 251, 174 N.W.2d 836 (1970); Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118 (1960); Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355 (1961); Selders v. Armentrout, 190 Neb. [190]*190275, 207 N.W.2d 686 (1973); Hodkinson v. Parker, 70 S.D. 272, 16 N.W.2d 924 (1944).

Lord Campbell’s Act, which served as a model for most American wrongful death acts, including our own, did not contain the words “pecuniary injury,” or anything similar. Lord Campbell’s Act provided: “[I]n every [wrongful death] action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought.”2 Because of the inherent difficulties in evaluating injuries to sentiments and affections resulting from death, “injury,” as contained within Lord Campbell’s Act, was narrowly construed to afford beneficiaries in wrongful death actions only damages for losses deemed “strictly” economic, or those items which could arguably be measured in specific dollars and cents.3 The rationale was that compensation for such things as companionship, society, grief, and mental anguish is too speculative. Thus, in an attempt to create a meaningful term of art from which to quantify the value of a human life, courts added the word “pecuniary” to injury, and the term “pecuniary injury” was subsequently codified in many wrongful death acts.4

More recently, courts have recognized that the measure of “pecuniary injury” in wrongful death actions as “strictly” economic loss, is unduly restrictive. See, e.g., Fussner v. Andert, supra. Courts have allowed recovery for the loss of society, association, companionship, comfort, affection of the decedent, and acts of kindness which originated in the relationship between the decedent and the beneficiaries, in cases involving claims for the benefit of the decedent’s parents, child, widow, widower, and collateral relatives.5 Generally, however, compensation for injured feelings or “solatium” is still prohibited, and grief and sorrow are not considered items of pecuniary loss.

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Flagtwet v. Smith, 367 N.W.2d 188, 1985 S.D. LEXIS 261 (S.D. 1985).

367 N.W.2d 188 (Flagtwet v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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