The main opinion in this case holds that the verdict was excessive and should have been reduced to present worth. On rehearing a majority of the Court is of the view that the judgment was excessive but some confusion exists as to whether or not it should have been reduced to present worth. We have decided on reconsideration to affirm with remittitur and leave the question of reduction to present worth open for further determination.
Two elements comprised the verdict, the first being compensatory damages for loss of services of a minor child, and the second being damages for mental pain and suffering *Page 458 to the mother, defendant in error, for the wrongful death of her child.
At common law injury to the feelings or mental pain and suffering did not constitute a basis for recovery of damages even though it be wrongfully inflicted. Damages for mental pain and suffering must be authorized by statute and generally will not be awarded when it is not induced or mixed with physical injury or is not traceable thereto.
8 Ruling case Law, 516, and cases cited. This rule is not of universal application; there is a current of authority holding that damages may be awarded for mental pain and suffering when there is an absence of physical injury. 8 Ruling Case Law, 519, and cases cited.
The applicable law in this State, Section 4962, Revised General Statutes of 1920, Section 7049, Compiled General Laws of 1927, awards damages to the parents of a minor child for the loss of services of said child and for mental pain and suffering occasioned them by its negligent or wrongful death.
Two influences have prompted such statutes in this country. The one is that in many cases it is practically impossible to prove pecuniary loss from the negligent death of a minor child, and in cases where such damages are susceptible of proof they are often so ridiculously low that a verdict or judgment based on them would be shocking to the mass or the judicial conscience. A second reason for such statutes is a tendency in this country to raise money grubbing to the level of a moral virtue. In either event permission to the jury to supplement the amount awarded as compensatory damages with an amount for mental pain and suffering enables a verdict more consonant with the gravamen of the offense if that be possible.
The responsibility of bringing up a child in the normal *Page 459 American home is made up of many years of antithetic responses. Pleasure, pain, gladness, sorrow, surprise, disappointment, exultation, humiliation, joy, grief, expense and in rare cases profit, are the links that make the chain. In the cases of Jackie Coogan or Shirley Temple the profit element would be material but these are exceptions to the rule. The rule is that the exepense element far outdistances the profit one if reduced to the crass basis of a monetary consideration.
Damages for mental pain and suffering are not generally regarded as punitive but more in the nature of compensatory. The law has devised no fixed standard by which they can be calculated and since this is the case the amount to be awarded must rest in the discretion of the jury. The law measures compensation for mental pain and suffering in money and while this may be a poor criterion it has been said that to forbid it because perchance the law's scales are not sufficiently delicate for their admeasurement is equally to condemn the use of the scales in all other directions, and in the very cases and for the very purposes now admittedly sanctioned by the law. Merrill v. Los Angeles Gas Electric Co., 158 Cal., 499,111 P. 534, 139 A. S. R. 134, 31 Rawle C. L. 559.
While I recognize the foregoing to be the law, to the writer of this opinion it has the ring of empty balderdash. To say that the grief and mental agony incident to the wrongful death of my child can be allayed by payment of money is meaningless nonsense, and if it could any amount awarded must be predicated on the wildest guess and speculation because of difference in nervous strain, environment, social background, and appreciation for degrees in character, we react differently when shadowed by the death of our own flesh. *Page 460
In cases where damages for mental pain and suffering are allowed it must bear some reasonable relation to the facts, the status of the parties the amount allowed as compensatory damages, and the philosophy and general trend of decisions affecting such cases. When we say that the amount allowed must bear some reasonable relation to such factors we do not mean that it must equal to, be twice these, or bear any other arbitrary relation to them, but what we do mean is that these and other cognate factors are the proper elements on which the allowance may be predicated. It cannot be predicated on the basis of restitution.
Mindful of these considerations we think a reasonable judgment in this case should not have exceeded Seven Thousand Dollars. If the plaintiff below will enter a remittitur for Three Thousand Dollars the judgment will be permitted to stand for the balance. Otherwise it will be reversed for a new trial.
WHITFIELD, C. J., and ELLIS, BROWN and DAVIS, J. J., concur.
BUFORD, J., dissents.