(concurring in part and dissenting in part).
Although I do not agree with the opinion on the second appeal, 77 N.M. 28, 419 P.2d 234 (1966), and it is with great reluctance that I concur in that portion of the majority opinion disposing of the jurisdictional question, I do agree with the law of the case doctrine which has been consistently adhered to by this and other courts as shown by the citations, in the majority opinion.
Nevertheless, I question the propriety and logic of relying on the law of the case doctrine to confer jurisdiction in retrospect over a case in which this court not only lacked jurisdiction, but in which it completely overlooked the matter. It is difficult for me to understand how a judgment, which is void for lack of jurisdiction, can be vitalized by applying the law of the case doctrine, when it is apparent that no thought was ever given by the court to the jurisdictional question. I find it difficult, by application of the law of the case doctrine, to convert a complete failure of the duty of determining jurisdiction (Marquez v. Wylie, 78 N.M. 544, 434 P.2d 69 (1967); Hayes v. Hagemeier, 75 N.M. 70, 400 P.2d 945 (1963) ; Evans v. Barber Super Markets, Inc., 69 N.M. 13, 363 P.2d 625 (1961)) into the unassailable position that the question of jurisdiction was determined. However, since the majority have no trouble in reaching this result, and since the cases from other jurisdictions which have considered the question seem to have rather consistently supported this view, my dissent does not go to this point.
The dissent I express arises trom my inability to agree with the majority’s interpretation of what the record shows and what was said in the opinion on the prior appeal.
First, I am unable to agree that the prior opinion disposed of the contention that the award should have been limited to the amount the father and mother of decedent, who are the survivors entitled to the recovery, might reasonably have expected to receive as pecuniary benefits from the continued life of their son. The majority rely upon the following language from the prior opinion:
“ * * * recovery belongs to the relative for whose benefit the suit is brought, and the right of recovery extends to those distributees named in the statute, or to those entitled under the laws of descent and distribution, in the same manner and to the same extent as is given to the wife and children of the decedent.” (Emphasis added).
I am unable to construe this language as meaning that the award must be the same, regardless of who the survivor or survivors entitled to the recovery may be, and that the extent of the pecuniary injury to the survivor or the survivors entitled to the recovery must be disregarded. In the prior opinion it was expressly noted that "the deprivation of the reasonable expectation of pecuniary benefits to his family would actually be the amount which could reasonably be expected to have been provided for them from the continued life of the deceased.” By reference to other language in the prior opinion, it is apparent that by "family” is meant wife and children. The words “recovery in the same manner and to the same extent,” when considered in the light of the quoted language concerning "the reasonable expectation of pecuniary benefits,” means to me a recovery to the extent of the pecuniary benefits which the father and mother could reasonably have expected to receive from their son had he continued to live. This is consistent with the express language of § 22-20-3, N.M.S.A.1953, wherein it is provided in part:
“ * * * the jury 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.” (Emphasis added).
I appreciate that there appears in other decisions by this court language suggestive of the result which the majority says was reached in the prior opinion in this case. Decisions from other courts, interpreting and applying like statutory language, have clearly recognized that the pecuniary injury or injuries to the surviving party or parties entitled to the recovery should be considered in arriving at the amount of an award. See Barnes v. Smith, supra; Quinn v. Southgate Nelson Corporation, 36 F.Supp. 873 (S.D.N.Y.1941) ; Dostie v. Lewiston Crushed Stone Co., 136 Me. 284, 8 A.2d 393 (1939) ; Fisher v. Trester, 119 Neb. 529, 229 N.W. 901 (1930) ; Capone v. Norton, 8 N.J. 54, 83 A.2d 710 (1951) ; Vescio v. Pennsylvania Electric Co., 336 Pa. 502, 9 A.2d 546 (1939) ; Rhoden v. Booth, 344 S.W.2d 481 (Tex.Civ.App.1961).
I am not convinced that the prior holdings of this court compel us to disregard the express language of our statute, and to disregard the pecuniary injury or injuries to the party or parties actually entitled to recover. The prior opinion in this case, as I read it, did not hold that the expected pecuniary benefits to the parents themselves should not be considered in fixing the award, and that this holding became the law of this case.
However, I reach the same result on this point as is reached by the majority. I do so on the ground that defendants failed to properly raise the question, in the trial court after remand. I find no requested finding of fact, or anything else in the record, to indicate this question was ever clearly presented, if presented at all.
In their brief in chief they suggest the matter was raised by an objection to one of the court’s findings. This finding relates solely to items considered by the court in arriving at “the net value of his [decedent’s] life to decedent’s estate,” and no reference or suggestion therein is made to the pecuniary injuries suffered by plaintiffs as the statutory beneficiaries. The objection thereto, upon which defendants apparently rely, is “that the amount of the court’s judgment is not the amount equivalent to the loss of reasonably expected benefits that would have resulted from the continued life of decedent.”
In my opinion, this objection to the finding, with nothing more, cannot reasonably be considered as sufficient to raise the question, or to alert the court’s attention to the failure in the finding to consider the pecuniary injuries resulting to plaintiffs from the death.
Secondly, I am unable to .agree with the majority view, that the case was not originally tried upon the theory that decedent’s personal expenses must be deducted from his anticipated earnings in order to arrive at the proper measure of damages.
It is self-evident that the decedent had to be supported from his wages in order to earn income, since his wages were the only suggested source of payment of his personal expenses, as well as the only source of any benefits his parents may reasonably have expected from him. It is, likewise, self-evident that the surviving party or parties entitled to recovery under our Wrongful Death Act could not reasonably expect, as a part of the pecuniary benefits which would have gone to them had the decedent survived, the amounts which decedent would have expended for his own support, maintenance and pleasure. In determining the pecuniary benefits which the survivor or survivors could reasonably have expected to receive from the decedent’s earnings, it is only logical, in the absence of some other suggested source of payment therefor, that these personal expenses would have to be considered and deducted from the reasonably anticipated earnings of decedent. See Barnes v. Smith, 305 F.2d 226 (10th Cir. 1962) ; Gonyer v. Russell, 160 F.Supp. 537 (D.C.R.I.1958); Pittman v. Merriman, 80 N.H. 295, 117 A. 18, 26 A.L.R. 589 (1922); Caudle v. Southern Railway Co., 242 N.C. 466, 88 S.E. 2d 138 (1955) ; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183 (1951); McCabe v. Narragansett Electric Lighting Co., 26 R.I. 427, 59 A. 112 (1904).
The record may not be as complete or as explicit as it could have been in regard to these personal expenses, but it unquestionably establishes personal expenses of decedent for his support and maintenance in an amount from $150.00 to $175.00 per month.
In one of their requested findings after remand, defendants expressly pointed out that:
“There should be deducted from the gross earnings of Jackie Raymond Varney, in order to obtain the reasonable expectation of pecuniary benefits to his personal representative, the following: Food, prepared at home and away from home; tobacco, alcoholic beverages, housing, fuel, light, water and refrigeration, household operations, house furnishings and equipment, clothing, clothing materials and services, personal care, medical care, recreation, reading, education, transportation, including automobile and other travel and transportation, and other expenditures not itemized, and State and Federal Income Taxes.”
The case was remanded on the prior appeal for the express purpose of correcting the amount of the award. Any proper award must take into account the amount proved for decedent’s support and maintenance. Since the award failed to consider this amount, the trial court should now be directed to reduce the award by the amount of such expenses supported by the evidence.
For the reasons stated, I dissent.