(dissenting).
The majority and I agree:
(1) By reason of the stipulation we must proceed on the basis of a total absence of either presumption or evidence of pecuniary injury to the statutory beneficiaries.
(2) No issue has been presented as to the claimed right of plaintiff to recover funeral and burial expenses, so this question is not before us.
(3) The right to recover damages for wrongful death is entirely statutory. Our Wrongful Death Act appears as §§ 22-20-1, 2 and 3, N.M.S.A.1953, as amended by Laws 1961, ch. 202, § 1 [§ 22-20-2, N.M. S.A.1953 (Supp.1969)].
(4) The positions of the respective parties are as set forth in the majority opinion.
(5) Language apparently supporting each of these positions may be found in the decisions of our Supreme Court.
The majority and I differ as to the proper interpretation of our Wrongful Death Act, and, particularly, as to the meaning and effect to be given the decisions of our Supreme Court over the years in construing and applying the provisions of the Act. I would add the following to the rules of statutory construction recited in the majority opinion:
(1) The Wrongful Death Act, being in derogation of the common law, must be strictly construed, if its terms are of doubtful meaning. Romero v. A. T. & S. F. Ry., 11 N.M. 679, 72 P. 37 (1903). See also, Ickes v. Brimhall, 42 N.M. 412, 79 P.2d 942 (1938); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966) ; Saunders v. Hill, 202 A.2d 807 (Del. 1964); Holland v. Hall, 145 So.2d 552 (Fla.App. 1962).
I am cognizant of the fact that other jurisdictions take different views as to the liberality or strictness with which wrongful death statutes should be construed. See Speiser, Recovery for Wrongful Death, § 1:10 (1966), and cases cited thereunder.
(2) A legislative re-enactment of a statutory provision, or statutory language, which has been judicially construed for a long period of time, constitutes legislative approval of that construction. State v. Lykes Brothers Steamship Co., 277 Ala. 178, 168 So.2d 211 (1964); Subsequent Injuries Fund State of California v. Industrial Acc. Comm., 151 Cal.App.2d 147, 311 P.2d 42 (1957); Turner v. Scanlon, 146 Conn. 149, 148 A.2d 334 (1959) ; Collins Investment Co. v. Metropolitan Dade County, 164 So. 2d 806 (Fla. 1964) ; City of Champaign v. City of Champaign Township, 16 Ill.2d 58, 156 N.E.2d 543 (1959) ; DeWitt v. Rissman, 218 Or. 549, 346 P.2d 104 (1959) ; Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436 (1962), appeal denied, 371 U.S. 21, 83 S.Ct. 120, 9 L.Ed.2d 96 (1962). This rule is especially applicable when the judicial construction of the reenacted statutory provision or language, is the construction placed thereon by a court of last resort. State v. McKenney, 268 Ala. 165, 105 So.2d 439 (1958); State ex rel. Matheny v. Probate Court of Marion County, 239 Ind. 518, 159 N.E.2d 128 (1959); Jeruzal v. Herrick, 350 Mich. 527, 87 N.W.2d 122 (1957); Misle v. Miller, 176 Neb. 113, 125 N.W.2d 512 (1963); Commercial Credit Corp. v. Pottmeyer, 176 Ohio St. 1, 197 N.E.2d 343 (1964); In re Borough of Aliquippa, 405 Pa. 421, 175 A.2d 856 (1961) ; Heaton v. Bristol, 317 S.W.2d 86 (Tex.Civ.App. 1958), cert. denied, 359 U.S. 230, 79 S.Ct. 802, 3 L.Ed.2d 765 (1958).
In addition to the original enactment in Laws 1882, ch. 61, the amendment thereof by Laws 1891, ch. 49, and the 1961 amendment to § 22-20-2, supra, all of which are referred to in the majority opinion, I call attention to the re-enactment of § 2 of the 1891 Act in its entirety by Laws of 1939, ch. 105. Certain language was added to the second paragraph of § 2 of the 1891 Act by the 1939 re-enactment, but none of this language is pertinent to the questions presented here. The pertinent portions of § 22-20-3, supra, which are found in the 1891 Act and also in the 1939 re-enactment thereof, are quoted in the majority opinion. Insofar as an award of compensatory damages is concerned, the pertinent language is:
“ * * * the jury in every such action may give such damages, compensatory * * * as they shall deem fair and just, taking into consideration the pecuniary injury or inj^lries resulting from such death to the surviving party or parties entitled to the judgment, or any interest therein, recovered in such action, * *.” [Emphasis added].
The pertinent language in the 1882 Act is quoted in the majority opinion. The material difference between the language thereof and the language of the 1891 Act is that instead of the above emphasized language in the quotation from § 22-20-3, supra, the 1882 Act read: “ * * * with reference to the necessary injury resulting from such death, * * *.”
It is conceded in the majority opinion that “ * * * precedent indicates that the language [in the 1882 Act] * * * limited recovery to the pecuniary injury suffered by the statutory beneficiary entitled to sue. * * * ” The majority, however, contend, that by reason of the changes in the 1891 law, pecuniary injury was no longer a prerequisite to a recovery of damages. They arrive at this conclusion because of the foregoing noted change from “with reference to the necessary injury” to “taking into consideration the pecuniary injury,” and the addition of the following language:
“ * * * if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.”
In regard to the change from “with reference to the necessary injury” to “taking into consideration the pecuniary injury,” I fail to understand how this change lends support to the contention that pecuniary injury, which had been construed as being essential under the prior language — wherein “pecuniary injury” was not even mentioned — is no longer essential. The present language expressly refers to “pecuniary injury.” The only difference between the construction placed on the language in the 1882 Act and the express language of the 1891 Act lies in the difference between “with reference to” and “taking into consideration.” I am unable to find that the ordinary and usual meaning given the expression, “with reference to,” and particularly in the context with which we are here concerned, signifies or implies any greater exclusiveness of, restriction upon, or direction toward the object thereof — the pecuniary injury — than does the expression, “taking into consideration.” I consider these expressions in the context used as being synonymous, or equivalent in effect.
In the first sentence of its discussion on the “rule of damages,” our Supreme Court in Cerrillos Coal R. Co. v. Deserant, 9 N.M. 49, 49 P. 807 (1897), stated:
“The rule in statutory actions for injuries causing death is, as shown by abundance of authority, that the damages recoverable is compensation for the pecuniary loss to the parties entitled to recovery. Chicago & R. I. R. Co. v. Norris, 26 Ill. 400; Conant v. Griffin, 48 Ill. 410, 412; Pennsylvania Railroad Co. v. Butler, 57 Pa.St. 335, 338; Telfer v. Northern R. Co., 30 N.J.L. 188, 199; Brady v. Chicago, 4 Biss. 448, 451, Fed. Cas. No. 1,796; South-Western R. R. Co. v. Polk [Paulk] 24 Ga. 356, 366; Moffatt v. Tenney, 17 Colo. 189, 30 P. 348.” [Emphasis added].
Insofar as I can find, this was the first construction by our Supreme Court of the damage provision in the 1891 Act. The majority announce they do not consider this language by our Supreme Court as “ * * * authoritative because it did not consider the effect of the changes made in our statute by the 1891 amendment and because it followed decisions of jurisdictions whose statutes were not similar to the New Mexico statute.”
I disagree with the statement that the decisions from the jurisdictions relied upon did not have “similar” statutes, and I do not know how the majority can say our Supreme Court did not consider the effect of the changes made by the 1891 amendment. In any event, this is the construction placed on the language in question by the Court of Last Resort in New Mexico. This construction has never been overruled. Thus, in accordance with the second rule of statutory construction stated above, the Legislature, by re-enacting this identical language over forty years later in the 1939 amendment, approved this construction. This is the construction adopted by the New Mexico Supreme Court Committee on Uniform Jury Instructions. New Mexico Uniform Jury Instructions, Civil, 1966 (U.J.I. 14.17). This is the construction expressly adopted in Whitmer v. El Paso & S. W. Co., 201 F. 193 (5th Cir. 1912), wherein our statute was being construed and applied. This is consistent with the language in Varney v. Taylor, 79 N.M. 652, 448 P.2d 164 (1968), wherein the court, in announcing a caveat, stated:
“In the light of the circumstances of this case, we now announce a caveat that in the future decedent’s . anticipated personal living expenses ought to be deducted from the amount otherwise determined as reasonable compensation for the deprivation of expected pecuniary benefits that would have resulted from the decedent’s continued life. * * * ” [Emphasis added].
Although, as observed in the majority opinion, the case of Rival v. A. T. & S. F. Ry., 62 N.M. 159, 306 P.2d 648, 64 A.L.R.2d 1098 (1957), involved an action for death under the Federal Employers Liability Act, our Supreme Court did adopt what it referred to as the general rule as stated in 25 C.J.S. Death § 26. In this rule it is stated:
“ ‘Under most statutes giving a right of action for death by wrongful act to or for the benefit of designated beneficiaries, pecuniary or material loss to such beneficiaries by reason of the death and consequent upon the relationship between them and deceased is essential to the recovery of any compensation; * * *.’ ”
This view of construction is also consistent with the views of other jurisdictions, wherein their statutes, as does ours, provide for damages to certain surviving beneficiaries. See Speiser, supra, §3:1 and cases cited thereunder; 5 Berryman, Sutherland Damages, §§ 1262 and 1263 (4th Ed.1916); 4 Zipp, Shearman and Redfield on Negligence, § 862 (Rev.Ed.1941).
I find no case decided in New Mexico which overrules the construction quoted above from Cerrillos Coal R. Co. v. Deserant, supra. The majority rely on the decision in Hogsett v. Hanna, 41 N.M. 22, 63 P.2d 540 (1936), which quoted at length from the withdrawn opinion of Justice Watson in Valdez v. Azar Bros., 33 N.M. 230, 264 P. 962 (1928). There is no doubt language therein suggests that pecuniary injury to the surviving beneficiary or beneficiaries is not necessary for the recovery of damages. Flowever, that point was not expressly decided. In this regard the Court stated:
“ ‘ * * * The case does not require us to examine the question further. We have only to determine the validity of appellants’ contention that the evidence warranted only nominal damages. This contention we must overrule, without speculation at this time as to the effect, in some other case, of the provision that the jury should consider the pecuniary injury to the party entitled to the judgment. In reaching the present conclusion, we are not without direct authority. In Whitmer v. El Paso & S. W. Co., supra, the court had under consideration the same statute and a similar case.’ ” [Emphasis added].
As above stated, the Whitmer case holds that pecuniary loss or injury is the measure of compensatory damages.
The majority state that “Hogsett v. Hanna, supra, has not been overruled.” This is true, but, contrary to what the majority state, and as expressly shown by the above quotation therefrom, it did not hold that pecuniary injury to the party or parties entitled to the judgment is not essential. If the majority’s appraisal of the holding in Hogsett v. Hanna, supra, be correct, they have failed to point to a single New Mexico case which has affirmed this position. Quite obviously the New Mexico Supreme Court Committee on Uniform Jury Instructions did not so construe the holding in this case, otherwise it would not have adopted in U.J.I. 14.17, supra, the contrary position, which was first anounced in Cerrillos Coal R. Co. v. Deserant, supra. The Committee comments show that both the Cerrillos and Hogsett cases were considered in drafting the instruction.
I appreciate that if the majority appraisal of the decision in Hogsett be correct, and that it did in fact overrule the holding in Cerrillos Coal R. Co. v. Deserant, supra, then my position, that the Legislature by the 1939 enactment adopted the Cerrillos construction, is not valid. However, in my mind there is no doubt that Hogsett did not expressly, or even impliedly, overrule Cerrillos Coal R. Co. v. Deserant, supra.
The second portion of the 1891 amendment, which the majority rely upon as support for their position, is the provision: “ * * * if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.”
They immediately conclude that the party or parties, authorized by law to dispose of a decedent’s estate, fall outside the class of “the surviving party or parties entitled to the judgment,” and, thus, a judgment may be awarded if there be none of the named kindred who sustained pecuniary injury.
The second paragraph of § 22-20-3, supra, merely recites the order of distribution of the proceeds of any judgment recovered. It has no bearing whatever upon the measure of damages, which is defined in the first paragraph. As I read the statute, regardless of whether named kindred or persons entitled to the recovery in the absence of named kindred are the beneficiaries, the measure of damages must be the equivalent of the pecuniary benefits which the beneficiary or beneficiaries might reasonably have expected from the continued life of the deceased.
In my opinion, the problems, which have arisen under our Wrongful Death Act in reference to the question of awarding compensatory damages, have not been occasioned by the requirement that the surviving beneficiary or beneficiaries must have sustained pecuniary injury or loss in order to recover such damages, but rather from the difficulties encountered in defining “pecuniary injury” and in trying to arrive at some formula which will properly include and properly exclude all elements which should be included and excluded in order to work justice between the parties. However, the adoption of the majority view will only serve to compound these problems. Under their view “pecuniary injury” is still to be considered, but it will not be the only consideration and will not be an essential consideration.
I also disagree with the majority view that recovery can be had under our Wrongful Death Act for (1) decedent’s conscious pain and suffering, and (2) expenses for medical and related services rendered decedent prior to his death.
The question is not what a decedent would have been entitled to recover had he survived. Nor are we concerned with the rights of survival or revivor of an action which decedent may have initiated and which was pending at the time of his death. The suit here was brought under our Wrongful Death Act, and any recovery by plaintiff must be pursuant thereto.
Plaintiff, and the majority of this court, rely upon the case of Kilkenny v. Kenney, 68 N.M. 266, 361 P.2d 149 (1961), for support of their position.
As to the claim for decedent’s conscious pain and suffering, there is language in the Kilkenny case which supports the position taken by the majority. However, as pointed out by the majority, the opinion in the Kilkenny case clearly states the claim for pain and suffering was brought by the husband as administrator. The court did, however, apparently rely upon the Wrongful Death Act as the basis for this cause of action. In my opinion the court erred in holding the Act authorizes recovery by an administrator for decedent’s pain and suffering.
An administrator who brings suit under the Wrongful Death Act does so only as the personal representative of decedent. Section 22-20-3, supra. He is a mere nominal party, and “does not act in his capacity as * * * administrator.” Baca v. Baca, 71 N.M. 468, 379 P.2d 765 (1963); Henkel v. Hood, 49 N.M. 45, 156 P.2d 790 (1945).
The majority seek to avoid the effect of this error in the Kilkenny case, by stating they believe what was meant by “administrator” was “personal representative.” However, they state if they be wrong in this it does not change the result in the present case because plaintiff, although she sues as personal representative, is also ancillary • administratrix with the Will annexed.
It is my 'position that the court meant “administrator” in the Kilkenny case and it erred in holding an “administrator” may recover under the Wrongful Death Act. Insofar as the majority in the present case suggests it makes no difference in which capacity plaintiff sues, they are also in error. See § 22-20-3, supra; Baca v. Baca, supra; Henkel v. Hood, supra.
If we assume the court in the Kilkenny case really meant “personal representative”, then we must look at the particular language in our Wrongful Death Act upon which the court relied for its holding that the Act created a cause of action for “ * * * damages sustained by decedent between the date of injury and the date of death.” After noting that there is some conflict in the, cases as to whether this cause of action comes within a Wrongful Death Act, the court stated:
“ * * * but we are of the opinion that the provision in § 22-20-3, supra, which allows a consideration of the mitigating or aggravating circumstances attending the wrongful act, when considered with the language contained in § 22-20-1, supra, warrants the allowance to the administrator of the decedent’s damages prior to death, provided they are not the same as those for which the husband, individually, has a right of recovery.”
It is apparent the court placed particular reliance upon the following language in § 22-20-3, supra: “ * * * and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default. * * * ”
In Whitmer v. El Paso & S. W. Co., supra, and Cerrillos Coal R. Co. v. Deserant, supra, it was held that these words have no weight upon or relationship to an award of compensatory damages, but have effect only on the question of allowing or not allowing exemplary damages. This is consistent with the concept of exemplary damages, which are awarded by way of punishment [Fredenburgh v. Allied Van Lines, Inc., 79 N.M. 593, 446 P.2d 868 (1968); Bank of New Mexico v. Rice, 78 N.M. 170, 429 P.2d 368 (1967) ; Montoya v. Moore, 77 N.M. 326, 422 P.2d 363 (1967)], because of aggravated circumstances [Bank of New Mexico v. Rice, supra; Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966); Gray v. Esslinger, 46 N. M. 421, 130 P.2d 24 (1942)]. U.J.I. 14.17, supra, is also consistent with this view.
When the Legislature re-enacted this precise language in 1939, it approved the prior construction thereof by our Supreme Court in the Cerrillos case.
The majority agree that the Cerrillos and Kilkenny decisions cannot be reconciled in their treatment of the quoted language from § 22-20-3, supra, but they reject the construction thereof in the Cerrillos case. In so doing, they also necessarily reject the like holding in Whitmer, and the judgment of the New Mexico Supreme Court Committee on Uniform Jury Instructions as to what the law in New Mexico is on this point, and particularly as to pain and suffering — the two elements of claimed damage here involved. U.J. I. 14.17, supra. In my opinion, the majority also necessarily reject a definition of exemplary damages which is consistent with the definitions thereof in all other New Mexico cases, in which the question of exemplary damages has been considered.
The majority urge that since the statute says the jury may award “damages * * * exemplary,” to hold the subsequent language, “ * * * and also having regard to the mitigating or aggravating circumstances * * * ”, relates to exemplary damages, is to say the Legislature repeated itself and is to render a portion of the language superfluous. As above stated, in 1939 the Legislature enacted this entire section knowing the interpretation placed thereon by the highest court in the State over forty years prior thereto. Even if I were able to accept the majority’s opinion that the construction in the Cerrillos case was wrong, still a proper exercise of judicial self-restraint would require that we not overrule that construction, since the section was re-enacted by the Legislature in the light of that construction. See Fireman’s Ins. Co. of Newark, N. J. v. Washburn County, 2 Wis.2d 214, 85 N.W.2d 840 (1957).
The statement, that the view taken by the court in the Cerrillos case renders a part of the statutory language superfluous, is, in my opinion, not valid. The same could be said with equal validity about all the language after “exemplary” in the first sentence of § 22-20-3, supra, and about all statutory definitions of words or terms.
Even conceding the correctness of the holding in the Kilkenny case, that holding depended upon the prior holdings that our Act was a survival statute. Natseway v. Jojola, 56 N.M. 793, 251 P.2d 274 (1952) ; State ex rel. De Moss v. District Court of the Sixth Judicial Dist., 55 N.M. 135, 227 P.2d 937 (1951) ; Hogsett v. Hanna, supra. In Baca v. Baca, supra, the language of the court clearly states that our Wrongful Death Act, prior to the 1961 amendment, had: “ * * * actually been held to be one in survival only in the sense that the cause of action accrues at the date of the injury and does not create a new cause of action upon the death of the injured person. * * * ”
Regardless of the extent to which our Act was a survival statute, it is no longer such. The amendment expressly provides: “The cause of action accrues as of the date of death.” Section 22-20-2, supra. The majority in their opinion would avoid the effect of this plain legislative language by reasoning that the cause of action already existed, and upon the death of the injured person was transmitted to the personal representative. As they see it, the 1961 amendment “ * * * does no more than change the time when the limitation period begins to run against the personal representative’s cause of action. * * * ” If this is what the Legislature intended, it could easily have so stated. Instead, it said: “The cause of action accrues as of the date of death.” 1 Bouv.Law Diet., Rawle’s Third ' Revision, p. 436 (1914), defines “cause of action” in part as follows:
“When a wrong has been committed, or a breach of duty has occurred, the cause of action has accrued. * * * A cause of action does not accrue until the existence of such a state of things as will enable a person having the proper relations to the property or persons concerned to bring an action; * * * ”
In Webster’s Third New International Dictionary (Unabridged) (1966), “accrue” is defined as meaning “to come into existence as an enforceable claim: vest as a right [a cause of action has accrued when the right to sue has become vested].”
Since there was no cause of action for wrongful death at common law, it appears very clear to me that the language of the 1961 amendment provided the cause of action should accrue, or come into existence, as of the date of death. It did not say this was the date of transfer of an existing cause of action from the decedent to the personal representative.
As to the claim for expenses for medical and related services rendered decedent prior to his death, the majority rely upon the Kilkenny case. However, they fail to mention that the claim in that case for hospital and medical expenses was brought by the plaintiff, personally, as the husband of the decedent. As to this cause of action, the court expressly stated:
“ * * * The damages sought by appellant as to this cause of action have nothing whatsoever to do with the death, and we do not believe that the Wrongful Death Act applies to common law remedies that heretofore existed and were not repealed by the Act. * * * ”
As above stated, no cause of action for wrongful death existed at common law. It exists only by reason of our statute, and it accrues, or comes into existence, only at death. Plaintiff’s claim for medical and related services rendered prior to death finds no support in our statute or in the Kilkenny case.
For the reasons stated, I would affirm the order dismissing the complaint. Since the majority take an opposite view, I respectfully dissent.