Opinion
No. 19,664.
Decided June 18, 1962. Rehearing denied July 9, 1962.
Action for wrongful death of child. From a judgment deemed inadequate the plaintiffs bring error.
Affirmed.
1. DEATH — Child — Damages — Jury. Net pecuniary loss is the measure of damages in wrongful death action under C.R.S. '53, 41-1-1, et seq., and parental grief is not an element of damages is in such actions, it being the peculiar province of the jury to estimate and assess such loss under proper instructions.
2. Action — Measure of Damages — Courts — Change — Legislative Function. Colorado has long adhered to the net pecuniary loss rule in determining damages in wrongful death actions, and any change in the law with respect thereto should be affected by legislative action and not through judicial legislation.
Error to the District Court of Arapahoe County, Hon. Howard Purdy, County Judge, sitting as District Judge.
Messrs. DAWKINS BERMAN, for plaintiffs in error.
Messrs. WOOD, RIS HAMES, Mr. STEPHEN E. CONNER, for defendants in error.
THIS is a wrongful death action under C.R.S. '53, 41-1-1 et seq., (as amended), brought by the parents of a three year old child. The parties appear here in the same order as in the trial court and will be referred to accordingly. The only issues in the case concern the proper amount and measure of damages.
Defendants, husband and wife and their twenty-four year old daughter, owned and possessed property located at 2901 South Carona Street in Englewood, Colorado. On August 3, 1959, defendant Mr. Stephen brought from work an electric spot welder weighing approximately 240 pounds and temporarily stored it in his backyard near the fence adjoining a sidewalk. On August 4, 1959, at approximately 10:30 A.M. the decedent child was found dead beneath the spot welder, the cause of the death being a cracked skull and multiple internal injuries suffered as a result of the spot welder falling on him. Plaintiffs, the parents of the child, then sued defendants for $25,000.00 for the negligent death of their child on the theory of attractive nuisance. Defendants denied negligence and alleged unavoidable accident. Following the introduction of evidence the court dismissed the action against the defendant's wife and daughter. The jury returned a verdict in favor of plaintiffs against the defendant husband for $700.00 upon which judgment was entered. Motion for a new trial was dispensed with.
Upon submitting the case the court instructed the jury to the effect that if it found for plaintiffs, the damages must be limited to the net pecuniary loss sustained by plaintiffs by reason of the child's death. The court then instructed that "the net pecuniary or monetary loss, if any, sustained by the plaintiffs by reason of the loss of their son is equivalent to the pecuniary or monetary benefits, if any, which the plaintiffs might reasonable have excepted to receive from the continuation of his life less the cost of properly and suitably maintaining and educating him." Plaintiffs excepted to this instruction and tendered an alternative instruction which was refused.
By writ of error plaintiffs seek a new trial solely on the issue of damages. They urges that: (1) the damages awarded by the jury were grossly and manifestly inadequate; and (2) in wrongful death actions of this type of the measure of damages should not be the net pecuniary loss sustained by the parents but rather the replacement value of the child as measured by the cost of infantile hospitalization and care, clothing, support and education up to the time of the child's death.
Plaintiffs must fail on both grounds. While we recognize that money damages in any amount can never compensate bereaved parents for the loss of a child, yet we must adhere to the rule that parental grief is not an element of damages in wrongful death actions under the statute. E. G. Pierce v. Conners, 20 Colo. 178, 37 Pac. 721 (1894). The jury in this case had the benefit of extensive testimony and evidence, and it was its peculiar province to estimate and assess the damages. E. G. Colorado Springs and Interurban Railroad Company v. Kelley, 65 Colo. 246, 176 Pac. 307 (1918); Lehrer v. Lorenzen, et al., 124 Colo. 17, 233 P.2d 382 (1951). In Lehrer, supra, we expressly set forth the standard for setting aside money a verdict on grounds of inadequacy in the following language:
"* * * [W]e hold it to be an abuse of discretion on the part of the court so to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations." 124 Colo. at 20-21.
We find nothing in this record to justify setting aside the verdict more here on any of these grounds.
Since the case of Pierce, supra, the court has continually adhered to the net pecuniary loss rule in determining the amount of damages in wrongful death cases. Any changes in the law as to the measure of damages allowed for the wrongful death of a child in our view should only come by proper legislative action and not through judicial legislation. In spite of at least two courts in other jurisdictions having discarded this theory in recent times [e.g. Wycko v. Gnodtke, 361 Mich. 331, 105 N.W.2d 118, (1960) and Fussner v. Andert, Minn., December 15, 1961, 113 N.W.2d 355] we have but recently approved both the rule and the Pierce case in Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422, and no good purpose would be served by an extended discussion here.
The judgment is accordingly affirmed.
Mr. JUSTICE MOORE specially concurs.
Mr. JUSTICE FRANTZ and Mr. JUSTICE HALL dissent.