Fussner v. Andert

113 N.W.2d 355, 261 Minn. 347, 1961 Minn. LEXIS 651
CourtSupreme Court of Minnesota
DecidedDecember 15, 1961
Docket38,223
StatusPublished
Cited by95 cases

This text of 113 N.W.2d 355 (Fussner v. Andert) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fussner v. Andert, 113 N.W.2d 355, 261 Minn. 347, 1961 Minn. LEXIS 651 (Mich. 1961).

Opinions

Murphy, Justice.

This case is before us on appeal from an order denying the plaintiff’s motion for a new trial. The plaintiff father brought an action for the death of his 19-year-old daughter allegedly due to the wrongful act of defendant. The jury returned a verdict for $3,000, which plaintiff claims is inadequate. The verdict, which left general damages in the sum of $1,739 after payment of funeral expenses, resulted, according to plaintiff, from the charge to the jury which expressed “an antiquated and restricted concept of ‘pecuniary loss.’ ” We are asked to reexamine the term “pecuniary loss” as used in Minn. St. 573.02, subd. 1, and to expand the scope and meaning of that term so as to make it applicable not only to damages resulting from money loss but to include as well damages for loss of aid, comfort, and society suffered by the next of kin of the deceased.

It appears from the record that plaintiff’s daughter, Sandra Fussner, died from injuries received in an automobile accident which the jury found was caused by the negligence of the defendant. The father was 49 years of age at the time of the trial and is an engineer in a railroad car repair shop. Sandra was the younger of two daughters. Her mother died in 1952 after an illness which continued for 2 years. During the mother’s illness the father relied upon Sandra for much of the housework, including cleaning and cooking. After the mother’s death the two girls assumed the responsibility of maintaining the household until 1955 when the sister married. Thereafter those responsibilities were assumed by the decedent. In the fall of 1956 the father remarried. The second wife continued her employment outside the home. The [349]*349decedent at the time of her death was employed as a typist-receptionist at a department store and for the 6%-month period prior to her death earned $1,104.95. She purchased her own necessities, various items for the house, and gifts for her father out of her earnings. She paid $7 per week for her room, but beyond that no accounting was kept of what she spent for the household. There was a pleasant relationship between the decedent, her father, and stepmother, and she considered their home as her own. After her father’s remarriage, there was no change in her routine of housework. Because the stepmother worked, the father relied upon her as before and it was customary for Sandra to start meals at night before the stepmother had returned home from work. The father testified:

“Sandra did all the washing, ironing, helped prepare the meals. My wife was working. Sandra was home every night. She would help wash the clothes, iron the curtains, scrub the floors, wax and shine the living room and bed rooms whenever they needed it.”

There was some reference in the record to the daughter’s engagement to a young man from whom she received a ring on her graduation from high school. There were no definite plans as to a wedding. At the time of Sandra’s death, the young man had moved to Florida where he was living with his parents. In the meantime Sandra had accepted other dates.

In submitting the case to the jury the court gave the standard and approved instruction on the subject of damages:

“If you award the plaintiff damages they must be in an amount which will fully, fairly and adequately reflect the present monetary value of any future contributions in money or services which you find Sandra would have made to her father during the remainder of their lives had she not been killed in this accident. In other words, if your verdict is for the plaintiff you must decide from the evidence what pecuniary or financial loss the plaintiff has sustained, but you may not include any amount as compensation for the father’s grief, sorrow or mental anguish, nor are you permitted to make an award for the father’s loss of his daughter’s comfort, society or companionship. You must confine your award to any monetary loss the plaintiff has proved by virtue [350]*350of his being deprived in the future of either financial contributions or contributions in services on the part of his daughter. Even though a child is not legally required to contribute to her parents after she becomes of age or becomes married, nevertheless you have the right to decide what voluntary contribution in money or services Sandra would have made to her father during the remainder of their lives.”

There is no contention that the court was in error in telling the jury that they could not include damages for the father’s grief, sorrow, or mental anguish. It is asserted that the error lies in the fact that the instruction limited recovery to loss in terms of dollars and that in context the instruction permitting recovery for “contributions in services” referred to labor or other employment performed pursuant to an understanding or agreement with the survivor and excluded from the consideration of the jury such real and substantial losses, which might be considered as having a pecuniary advantage to the survivor and which would be encompassed within the broad term of society and companionship.

In considering the issue presented, a brief reference may be. made to the origin and development of death-by-wrongful-act statutes. At common law a civil action for wrongful death was not permitted; the only recourse against the wrongdoer being by criminal action. However, recovery for wrongful injury was allowed. It was, therefore, to the wrongdoer’s financial interest if his injured victim died. To correct this inequity, Lord Campbell’s Act1 was adopted, which allowed designated beneficiaries a right of action for damages sustained by them, provided, of course, that the deceased, had he lived, would have had a cause of action for the wrongfully inflicted injury. The pertinent part of the act (§2) reads as follows:

“* * * in every such Action the Jury may give such Damages as they may think proportioned to the Injury resulting from such Death * *

While Lord Campbell’s Act did not provide a yardstick by which dam[351]*351ages were to be measured, the English court held that damages were to be based on pecuniary loss.2

The original Minnesota act3 was modeled after and enacted somewhat contemporaneously with Lord Campbell’s Act. It was silent as to the kind and nature of damages to be recovered. The present Minnesota statute, Minn. St. 573.02, subd. 1, provides:

“* * * -phe recovery in such action is such an amount as the jury deems fair and just in reference to the pecuniary loss resulting from such death, * *

The foregoing provision was added by L. 1951, c. 697, and incorporates the pecuniary-loss standard expressed by this court in early decisions. These decisions involved the issue of excessive verdicts and expressed the view that the statute did not comprehend payment of damages for “mere loss of society or mental suffering” and that no pecuniary compensation can be given for “loss of the comfort or companionship. of a relative nor for the pain and suffering of the deceased.”4

All of the states have adopted death-by-wrongful-act statutes. While it appears that most of these statutes are similar in phraseology, the rules as to right of recovery for loss of deceased’s society vary- in the several jurisdictions. This is due to statutory differences and divergent judicial interpretation. It appears that 25 states have enacted statutes similar to Lord Campbell’s Act.

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Cite This Page — Counsel Stack

Bluebook (online)
113 N.W.2d 355, 261 Minn. 347, 1961 Minn. LEXIS 651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fussner-v-andert-minn-1961.