(Concurring in part and dissenting in part).
I concur in the award of $57,000 for pecuniary damages awarded for the death of Gregory Lee Wilson. I dissent on the denial of $10,000 for loss of society.
A. The Award of Pecuniary Damage
(1) Contributory Negligence of Decedent
I desire to add to this point on the subject of statutory violation for which defendants contend.
The trial court found decedent was travelling south on Chelwood across the southernmost lanes of Menaul; that the accident occurred in the southeast quadrant; that there was no evidence of negligence on the part of decedent.
“Proximate cause” is not an issue in this case. Negligence on the part of the decedent is the issue. The trial court found that there was no evidence of negligence on the part of decedent. Contributory negligence consists of two successive issues of fact: (1) negligence of plaintiff and (2) that such negligence proximately contributed to the accident. U.J.I. 13.1. The trial court found no negligence on decedent’s part. Thus, it was not necessary to decide, and the trial court did not decide, the second issue. The issue of whether decedent’s negligence proximately contributed to the accident is not properly before this court. It would be necessary to remand this case .to the trial court for a finding on that factual issue before it could be considered by this court. If we accept defendants’ contention that decedent violated the pertinent statutes, the issue of proximate cause must be decided by the trial court. The trial court made no finding on proximate cause.
For lack of evidence, the trial court did not determine upon which side of Chelwood decedent travelled when decedent crossed the southernmost lanes of Menaul.
A bicyclist is in the same duty category as other vehicular traffic. Aragon v. Speelman, 83 N.M. 285, 288, 491 P.2d 173 (Ct.App.1971).
The issue is: Does the fact that the accident occurred in the southeast quadrant of the intersection evidence negligence per se of the decedent in violation of motor vehicle statutes? My answer is “No”.
The trial court’s finding that the accident occurred in the southeast quadrant does not bear upon negligence of the decedent.
No witness saw decedent when he initially entered the intersection. “Speculation” is the act of theorizing about a matter as to which evidence is not sufficient for certain knowledge. Pavlos v. Albuquerque National Bank, 82 N.M. 759, 487 P.2d 187 (Ct.App.1971), dissenting opinion, p. 768. Where the burden of proof is on the defendants, we cannot speculate whether decedent was on the right or wrong side at the time of crossing the Menaul intersection. Decedent could have been on the right side and travelled to the wrong side to attempt to avoid the collision. “Where there are no eyewitnesses, the love of life speaks as a silent witness against * * * contributory negligence * * Williams v. Town of Silver City, 84 N.M. 279, 288, 502 P.2d 304, 313 (Ct.App.1972), concurring and dissenting opinion. See Tauch v. Ferguson-Steere Motor Company, 62 N. M. 429, 438, 439, 312 P.2d 83 (1957).
Without any evidence to rebut decedent’s presumption of due care, the presumption did not vanish. Pavlos, supra.
The burden was on defendants to prove by credible and substantial evidence that decedent was actually travelling south across the Menaul intersection on the east or wrong side thereof at the time of the accident. Defendants did not meet that burden. Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959); Committee Comment, U.J.I. 12.16. See Paddock v. Schuelke, 81 N.M. 759, 473 P.2d 373 (Ct.App.1970); Pavlos v. Albuquerque National Bank, supra.
The only physical fact which bears upon decedent’s negligence is the place of impact. However, "[t]he physical facts rule may not be invoked with respect to speed, position, etc., of movable objects if the facts relating to speed, position, etc., must be established by oral evidence.” Crocker v. Johnston, 43 N.M. 469, 474, 95 P.2d 214, 217 (1939). The physical facts rule is an evidentiary question. For New Mexico cases, see Bolen v. Rio Rancho Estates, Inc., 81 N.M. 307, 466 P.2d 873 (Ct.App.1970). For a critical analysis of the “Physical Facts Rule”, see Hoffman, The “Physical Facts Rule”: To Seem Is To Be?, 2 N.M. L.Rev. 56 (1972). The place of impact does not establish the position of decedent when travelling through the intersection on his bicycle.
The time has come for this court to recognize that a motor vehicle is a dangerous instrumentality. Hess v. Pawloski, 274 U. S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); Miller v. Marsh, 53 N.M. 5, 10, 201 P.2d 341 (1948). When an automobile is operated as it was in this case, an emergency arose. In the absence of an emergency, decedent had a duty to exercise “ * * * that degree of care which a reasonably careful child of the age [7 years, 10 months], mental capacity, and experience of the decedent would use under circumstances similar to those shown by the evidence.” U.J.I. 12.5. In the presence of an emergency, decedent was only required to do that which seemed reasonable to him to avoid collision after discovery of the danger. Miller, supra.
There is substantial evidence to support the trial court’s finding that decedent was not guilty of contributory negligence.
(2) The Award Was Not Excessive.
Defendants requested the following find- . ing:
The mathematical formula presented by Everett Dillman is impractical and lacking in credibility under the circumstances. ■
This requested finding was refused. An interesting question arises as to the admissibility of testimony on damages for death of a child by an economist and statistician whose qualifications are unimpeachable and unchallenged. This appears to be a new question in New Mexico.
The admission of expert testimony rests within the broad discretion of the trial court. City of Santa Fe v. Gonzales, 80 N.M. 401, 456 P.2d 875 (1969); Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct. App.1969); 39 A.L.R.3d 207 (1971). The trial court did not abuse its discretion.
The best authority in support of Dill-man’s testimony is found in Volume 1971, No. 2, of The Defense Research Institute, Inc., entitled “The Economic Expert In Litigation.” It contains an invaluable dissertation on the use of economists, methods of evaluating economic losses in legal proceedings, methods of meeting the challenged testimony, an alphabetical listing of the names of experts whose testimony is recorded. Listed as one of the economic consultants is Everett G. Dillman. See also, Hamilton & Patterson, The Economic Side of Wrongful Death in New Mexico, 2 N.M.L.Rev., p. 127 (1972). The D.R.I. document also contains other materials, bibliography and citation of cases. The citation closest in point to this case is Henry Grady Hotel Corporation v. Watts, 119 Ga.App. 251, 167 S.E.2d 205 (1969) where verdicts of $113,000 were upheld for the death of a 14 year old son.
The mathematical formula presented by Professor Dillman was not impractical or lacking in credibility. The trial court did not err in refusing defendants’ requested finding.
An award of $57,000 for the death of a boy almost 8 years of age is not excessive. We should not hold an award excessive except in extreme cases. Baca v. Baca, 81 N.M. 734, 741, 472 P.2d 997 (Ct.App. 1970). “However, the change in the size of personal injury awards cannot be attributed solely to their (economists’) testimony. We cannot ignore the fact that society is undergoing significant changes in its attitudes concerning human life.” D.R.I., supra, p. 5.
A review of recent cases shows that a verdict of $1,800,000 was upheld for the death of a 15 year old son. Compania Dominicana de Aviacion v. Knapp, 251 So. 2d 18 (Fla.App.1971). An award of $252,000 was upheld for the death of an 18 year old young man. Hart v. Forchelli, 445 F.2d 1018 (2nd Cir. 1971). See, State v. Daley, 287 N.E.2d 552 (Ind.1972).
The judgment of $57,000 is not excessive.
B. Recovery For Loss of Society
In 1897, in a death action, Cerrillos C. R. R. Co. v. Deserant, 9 N.M. 49, 68, 49 P. 807 (1897), held that nothing could “be added by way of consolation to the parties or party entitled as distributees to the proceeds of recovery”; that it was erroneous to instruct the jury that a mother as a nominal plaintiff could recover for loss of comforts and protection for the death of her husband and two sons.
The court said (p. 68, 49 P. p. 813):
It is resolved into a cold question of dollars, with sentiment in no way to be taken into account.
The court arrived at this harsh conclusion because it ruled that damages were recoverable only for “the present worth of the life of deceased”.
This is a misreading of the Death Act. Section 22-20-3, N.M.S.A.1953 (Vol. 5) reads in part as follows:
* * * [T]he fury in every such action may give such damages, compensatory and exemplary, as they shall deem fair and just, (taking into consideration the pecuniary injury or injuries resulting from such death) to the surviving party or parties entitled to the judgment * * *. [Parenthesis and emphasis added].
This statute means that surviving parties entitled to judgment may recover compensatory and exemplary damages arising out of the death of kin. The jury or the fact finder only considers the pecuniary or dollar value of the injury or injuries resulting from such death. The absence of pecuniary injury “does not preclude an award of substantial damages for the death.” Baca v. Baca, supra. The term “compensatory damages” covers “the full loss or detriment suffered by the injured party and makes him financially whole.” Castro v. Bass, 74 N.M. 254, 258, 392 P.2d 668, 671 (1964). It includes pain and suffering, the loss of decedent’s society, companionship, care and protection. “Exemplary damages” are “punitive damages”, and are awarded as punishment of the offender. Galindo v. Western States Collection Company, 82 N.M. 149, 477 P.2d 325 (Ct.App.1970).
We must remember that the wrongful death act has for its purpose more than monetary compensation. It is intended, also, to promote safety of life and limb by making negligence that causes death costly to the wrongdoer. Stang v. Hertz Corporation, 81 N.M. 348, 350, 351, 467 P.2d 14 (1970). Stang, p. 352, 467 P.2d p. 18, disavowed the statement in Cerrillos, supra, “to the effect that nothing is to be included for ‘suffering or anguish of mind or body by the deceased.’ ” The “cold question of dollars” without “sentiment” has disappeared.
The doctrine of Cerrillos, supra, in 1897, is not the doctine 76 years later because “[t]he public policy of one generation may not, under changed conditions, be the public policy of another.” Funk v. United States, 290 U.S. 371, 381, 54 S.Ct. 212, 215, 78 L.Ed. 369, 93 A.L.R. 1136 (1933); United States v. Mitchell, 322 U.S. 65, 66, 64 S.Ct. 896, 88 L.Ed. 1140 (1944).
Recovery for loss of society, comfort and protection under pecuniary loss death statutes has reached a strong position in actual money value. It is not the privilege of the wrongdoer to hide behind the uncertainties inherent in the loss he has created. Wycko v. Gnodtke, 361 Mich. 331, 105 N. W.2d 118, 123 (1960); Smith v. City of Detroit, 388 Mich. 637, 202 N.W.2d 300 (1972) ; Fussner v. Andert, 261 Minn. 347, 113 N.W.2d 355, 358, 359 (1962); Wardlow v. City of Keokuk, 190 N.W.2d 439 (Iowa 1971); 19 Vand.L.Rev. 1405, 1407 (1966); 39 N.D.L.Rev. 198, 201, 202 (1963).
“ * * * [T]he legal and social standards of 1846 are as dead as the coachman and his postilions who guided the coaches of its society through the dark and muddy streets * * Wycko, supra. If the Supreme Court disagrees, the Wrongful Death Statute should be amended. It was in Michigan. Smith, supra.
The plaintiff was entitled to recover $10,000 for loss of society, comfort and protection.