(specially concurring).
I concur in the result.
As my reasons for concurring as to the defendants’ fourth point differ from those of Judge Lopez I will state my views separately.
Defendants contend that the award of $57,000.00 is excessive and that it should either be set aside or that a substantial remittitur should be granted. They argue that the trial court was overwhelmed by the speculative testimony of Professor Dillman.
I do not agree.
It must be kept in mind that “The statutes allowing damages for wrongful act or neglect causing death have for their purpose more than compensation. It is intended by them, also, to promote safety of life and limb by making negligence that causes death costly to the wrongdoer.” Also, “ * * * substantial damages are recoverable without proof of pecuniary loss.” Stang v. Hertz Corp., 81 N.M. 348, 467 P.2d 14 (1970). And, “There is no fixed standard for measuring the value of a life, and, as in personal injury cases, wide latitude is allowed for the exercise of the judgment of the jury in fixing the amount of such an award. An appellate court should not hold an award of damages to be excessive except in extreme cases.” Baca v. Baca, 81 N.M. 734, 472 P.2d 997 (Ct.App.1970).
Evidence introduced' by the plaintiff showed that the decedent was seven almost eight years old, and in good health, at the time of his death. Two of his teachers testified that he was bright, motivated and above average in school and that he had good potential as a student. Plaintiffs also introduced evidence showing that his mother was a high school graduate and had attended college one year. His father was a high school graduate and had attended college four years but had not received a degree. The father was the proprietor of a launderette and his income was about $6,200 per year. Decedent’s maternal grandfather was a retired medical doctor who had practiced over thirty-eight years.
Professor Dillman, who was called as an expert witness by plaintiff, was a professor of Business Administration at the University of Texas at El Paso and a business and economic consultant. He testified that the decedent had a life expectancy of 61.43 years, and a work-life expectancy of 43.5 years beginning at age 18. The first figure he said was obtained from Vol. 12, part 3, N.M.S.A., p. 366, “Commissioners 1958 Standard Ordinary (1950-54)”, and the second figure from tables published by the U. S. Department of Labor. He went on to testify since the decedent was only seven almost eight ' years old he consequently had no demonstrated adult earning capacity. Therefore, it was necessary to place decedent in a “statistical group” in order to be able to make assumptions as to his educational attainment, marital status, and earnings. Referring principally to figures published by the Department of Commerce, Bureau of the Census, he said they showed that the average educational attainment of males in New Mexico and Nationally was a little over 12 years and that 59.-7% of them completed high school. The gross lifetime earnings of a male high school graduate would be $371,094.00 and a single male who had 4 years of college would be $584,000.62. He also testified that statistics indicated that there was a 50% probability that decedent would have married by the age of 23 and a probability that he would have remained married 75% of the time of his remaining work-life expectancy.
The professor testified the lifetime gross earning figures, depending on whether decedent was married or single or whether he was a high school graduate and had completed 4 years of college, would have to be adjusted to arrive at the present worth of decedent’s life. He said that the gross figures would have to be increased by the rate of 5% per year to allow for increases in the productivity of labor and increases in the cost of living. In support of the use of the 5% figure, he cited the increase in wages of those employed in manufacturing from $24.27 per week in 1927 to $143.73 in 1970. The resulting figure would then have to be reduced by 5% per year to compensate for the earning power of money. The 5% figure came from the rate of return on triple A tax free municipal securities. The figure was also reduced to compensate for the payment of federal and state income taxes, social security payments and maintenance or living costs. Using the same additions and deductions he testified that the present worth of decedent’s life was as follows: If single and a high school graduate $160,751.00; married and a high school graduate $237,346; single with 4 years of college $208,783.00; married with 4 years of college $308,263.00.
The trial court’s findings pertinent to this point were: that decedent had a life expectancy of 61.43 years and a work-life expectancy of 43.4 years; that he would have completed 4 years of high school; that he would probably have been married 75% of his work-life expectancy; and that he would probably have attended college. However, in spite of these findings the trial court discounted even the lowest figure testified to hy Professor Dillman in arriving at the award of $57,000.00.
As to the admissibility of Dr. Dillman’s testimony, I believe that question was settled by our Supreme Court in Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041 (1949) :
“No general rule can be formulated that would properly control the admission of evidence to prove a man’s future earning capacity. It must be arrived at largely from probabilities; and any evidence that would fairly indicate his present earning capacity, and the probability of its increase or decrease in the future ought to be admitted * * * It may be that such testimony is speculative * * * but no more so than any that has for its purpose the proof of future action or events. It is all problematical at best. It is not questioned that mortality tables are admissible, but possibly not one time in fifty would the life expectancy of any individual come within a year of the actual length of his life.” [Emphasis mine]
In my opinion the effect of such evidence is exactly opposite from that contended by defendants, i. e., that it is speculative and conducive to erroneous awards. I believe that the testimony of Dr. Dillman gave the trial court a reasonable basis upon which to estimate with some degree of certainty the present worth of decedent’s life. To exclude evidence of this kind is to effectively exclude children from our wrongful death statute. The results of such exclusion can be seen in the judgments from States where such evidence is excluded, token awards which are neither compensatory nor punitive.
As to the question of excessiveness it is my opinion that an award should not be set aside or a remittitur ordered unless it is so grossly excessive as to carry its own obvious proof of prejudice or mistake. Considering the various sums testified to by Dr. Dillman the award of $57,000.00 is neither excessive nor mistaken.