DISSENTING OPINION OF
LEVINSON, J., WITH WHOM KOBAYASHI, J., JOINS.I dissent because I think that Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373, 369 P.2d 96 (1961), was decided correctly.
I.
Rohlfing held, in effect, that those jurisdictions which have both survival and wrongful death statutes and which allow damages to be cut off at the date of death are misinterpreting the statutes, and I agree. The Rohlfing majority accurately characterized the source of an action under the survival statute as the injury rather than the loss of life:
Hence, under the survival statute the cause of action arises out of the injury. The injury may manifest itself in the loss of life instantly or subsequently, but the loss of life is not what gives rise to the cause of action. In contrast, an action under [the wrongful *240death statute] arises out of the death. [45 Haw. at 383, 369 P.2d at 101.]
The court further elaborated on this principle:
The touchstone is the right that was vested in the injured person at the moment of his death. It seems to us that a person mortally wounded cannot have less than the right to the present value of the sum, if any, that with due regard to his own cost of living and the care of his loved ones, would have been at his disposal during his lifetime had he been permitted to live it normally. If that is not a sound proposition then one can with equal justice urge that an injured person, alone in the world, who lies in a coma in a hospital and will never recover from it, has only a right to such sum as will maintain him in the hospital and nothing for lost earnings because, forsooth, he will not in future be able to spend anything; or that in any instance in which a person’s earnings are more than he is ever likely to spend in his lifetime there should be no recovery for the excess since it will only go to his heirs anyway. [45 Haw. at 390, 369 P.2d at 105.]
While the issue of duplication of damages was not directly before the Rohlfmg court on the facts of that case because that action was brought under the survival statute only, the court recognized this as a genuine problem and discussed it at length. It concluded that the legislature provided against this possibility by merging the common law wrongful death action into its statutory successor and by providing for consolidation of wrongful death and survival actions arising from the same incident. 45 Haw. at 394, 369 P.2d at 106-07.
The Rohlfing approach was noted with approval by Professor John G. Fleming in The Lost Years: A Problem in the Computation and Distribution of Damages, 50 Calif. L. Rev. 598, 606-07 (1962):
*241The standard solution [to the conflict between wrongful death claims of the survivors and those of the heirs under survival statutes] is to allow the dependents the value of their expectancy and to allot the estate, as representing the decedent, his probable earnings limited to the span between injury and death. This disposition offers the tortfeasor adequate protection against double liability (even when the actions are not consolidated), but incidentally confers on him a disguised windfall by not mulcting him for the difference between the present worth of the decedent’s likely earnings during his lost years, reduced by the probable cost of his maintenance, and the amount awarded to the dependents. In recognizing the estate’s legitimate claim to such “excess earnings,” Pennsylvania and Hawaii are thus far alone in offering a commendable departure from the customary formula. (Footnotes omitted.)
In contrast to Rohlfing, the majority in the present case is attempting to reconcile the wrongful death and survival statutes on the theory that duplication of damages can be avoided by the simple device of limiting recovery in the survival action to the date of death, with the wrongful death action then picking up any loss of earning capacity from death to the date of life expectancy prior to the injury. Unfortunately, in its headlong rush to avoid what it labels “punishment,” the majority has lost sight of such considerations as the true goals of compensation, the fact that our statutory scheme already avoids duplication, and the impact of its decision upon the distribution of damages.
The goals of compensation have been set forth with clarity in prior decisions of this court: The general rule in measuring damages is to award such sum of money to the injured person as will restore him to the position he would have béen in had the injury not occurred. Rodrigues v. State, 52 Haw. 156, 167, 472 P.2d 509, 517 *242(1970). Lost future earnings are one element of damages commonly arising from personal injuries which are properly chargeable against the tortfeasor. Jendrusch v. Abbott, 39 Haw. 506, 508-10 (1952). If the injury results in a permanent destruction of the ability to earn income, the wage loss may form a large portion of the total injury suffered, and evidence of this future loss is properly admissible for consideration by the jury. Nakagawa v. Apana, 52 Haw. 379, 391, 477 P.2d 611, 618 (1970). The sum of these goals, that injured parties must be compensated by the wrongdoer for the totality of their losses, has been overlooked by the majority in its narrow concentration on the problem of “punishment.”
Under the Hawaii statutory scheme duplication of damages is easily avoided. The problem, of course, is certainly one which cannot be ignored. See, Martin, Measuring Damages in Survival Actions for Tortious Death, 47 Wash. L. Rev. 609, 621-28 (1972); Duffey, The Maldistribution of Damages in Wrongful Death, 19 Ohio St. L.J. 264, 268-76 (1958) . But the functional result under Rohlfng is that a dependent’s recovery is limited to his net pecuniary loss, because any support which he would have received must be deducted from that part of the estate to which he is entitled as an heir. 45 Haw. at 385-89, 369 P.2d at 102-04. This constitutes a built-in prevention of any double recovery. Again, this feature is commended by Professor Fleming:
{A} more sophisticated disposition has recently been suggested which would actually offer him some measure of participation in the fund notionally represented by his lost years. According to this recommendation by the Hawaii court, it would be wholly proper to allow him the difference between his probable earnings during that period and the amount to which his dependents could lay a subsequent claim for loss of their expected support. Recognition of the decedent’s title to such “excess earnings” has the un*243doubted advantage of forestalling the tortfeasor from any disguised windfall, insignificant though it may be in most cases, besides emphasizing that recovery based on normal life expectancy should be qualified only to the extent irreducibly necessary for sparing the tortfeasor from double liability. [50 Cal. L. Rev. at 613]
Perhaps the most important shortcoming of the majority's position is its refusal to acknowledge the impact of its broad-ranging language upon the distribution of damages. To rule that the probable future excess earnings of the decedent are not a proper item of damages in this case allows future defendants to obtain a windfall from their own actions. A benefit will be reaped when a victim is killed rather than injured.
There are a number of readily conceivable situations in which a tortfeasor will benefit under the majority’s holding when an injury results in death rather than disability, thereby allowing the wrongdoer to escape all or part of his liability. Any situation in which a decedent has beneficiaries under his will or heirs who do not fall within those categories empowered to bring actions under the wrongful death statute, that is, any heir or beneficiary not supported by, or beneficiary not related to, the decedent, would result in the complete loss of an otherwise compensable damage. The fact that a dependent spouse, parent, or child has a valid action under the wrongful death statute offers no consolation to those who, in spite of an otherwise compensable interest, are now foreclosed from protecting it, especially in view of the fact that duplication of damages is already prevented in this jurisdiction.
Other interested parties, although they may appear with less frequency, are creditors and the state. The majority’s opinion has a detrimental effect upon the interest of the creditors of an estate by virtue of the fact *244that lost future earnings would likely be the largest single damage item: nor does our wrongful death statute list creditors among those groups empowered to use it. Also, any advantage accruing to the state under the escheat statute would be lost, resulting in a loss of revenue.
The inevitable conclusion is that, as a result of the majority’s balancing of the two statutes, distribution is by item of damage rather than upon any considered policy decision as to the extent of the damage interest. This, in my opinion, is patently unfair to those who have been damaged by the wrongdoing of others.
II.
Because I believe the Rohlfing decision was correct, it is necessary to address the other issues raised on appeal, for the reason that the legislature may now choose to amend the survival statute or the court may one day return to the proper interpretation.
A. The Deduction of Federal and State Income Tax from A ward of Damages for Loss of Probable Net Excess Earnings.
At trial, the circuit court instructed the jury that future federal and state income tax payments should be deducted from the present value of the decedent’s likely earnings in determining the loss to his estate of probable net excess earnings. This instruction reflected the obvious fact that, had the decedent lived, his future gross earnings would have been taxable.1
*245In my opinion, the circuit court erred in so instructing the jury. I agree with the well-reasoned opinion of Chief Judge Friendly in McWeeney v. New York, New Haven & Hartford Railroad Company, 282 F.2d 34, 36-39 (2d Cir. 1960), cert. denied, 364 U.S. 870 (1960), that the pitfalls of presenting the jury with a task of such “delusive simplicity” outweigh whatever utility there might be. Accord, Boston & Maine Railroad v. Talbert, 360 F.2d 286, 291 (1st Cir. 1966); Girard Trust Corn Exchange Bank v. Philadelphia Transportation Company, 410 Pa. 530, 538, 190 A.2d 293, 297-98 (1963). Even assuming that the jury could estimate with any degree of accuracy the number of the decedent’s probable exemptions, the dates when they would come into being, the rates to which the decedent would be subject, the deductions to which he would variously be entitled, and the particular state tax structures under which he would incur liability during his lifetime, the instruction fails to credit the decedent’s estate with a number of offsetting factors. First,
the theoretical measure of the loss of the plaintiff’s earning capacity is that sum of money which if invested at a fair rate of return will yield annually the amount by which the plaintiff’s earning capacity has been lessened and which will at the end of the plaintiff’s life expectancy be reduced to zero. This takes account of the fact that money earns interest each year; and it should be remembered that this interest is taxable. Therefore, if a court is going to use income after taxes as a measure of plaintiff’s loss, it must add back the taxes which would be due on the interest earned — else the award would not fully compensate for the loss.
Morris and Nordstrom, Personal Injury Recoveries and the Federal Income Tax Law, 46 A.B.A.J. 274, 328 (1960). Second, such an instruction exacerbates the role *246of inflation and attorneys’ contingency fees in diminishing the real recovery to a decedent’s estate. A trial court should not permit the introduction of testimony relating to the likely incidence of tax liability which a decedent would have encountered but for his death or instruct the jury that such tax should be deducted from the measure of probable net excess earnings.2
B. The Hypothetical Wife and Children
In Rohlfing v. Moses Akiona, Ltd., 45 Haw. 373, 393, 369 P.2d 96, 106 (1961), this court declared the necessity of reducing an award to a decedent’s estate for loss of excess earnings in such a way as “to eliminate the expenditures for decedent’s own cost of living and the care of his family and dependents.” With this caveat in mind, the appellees introduced evidence at trial, over the appellant’s objection, that the decedent, had he lived, would probably have married and had two children, and that the cost of maintaining this hypothetical family over his life expectancy would have eliminated his excess earnings. The appellant contends that the circuit court’s failure to exclude this evidence and to instruct the jury that it could not properly consider the effect of maintaining a hypothetical family upon a decedent’s probable net excess earnings resulted in a disproportionately low jury award.
The appellees counter by urging that speculation is inevitable when excess earnings are at issue. They point *247to numerous instances in the record where the appellant resorted to such speculation in establishing the decedent’s probable level of future income. They argue additionally that the circuit court’s instruction to the jury did not require the jury to deduct the cost of maintaining a hypothetical wife and two children from the excess earnings credited to the decedent’s estate.
The appellee’s arguments, however, misconceive the injunction of the Rohlfing case. Under Rohlfing, support money actually awarded to a widow or children under HRS § 663-3 must be deducted from the excess earnings to be credited under HRS § 663-7 to the decedent’s estate, in order to prevent a double recovery by the decedent’s dependents and heirs. But there can be no double recovery by a widow or by children who do not in fact exist. To deduct the cost of maintaining a hypothetical family from the award to which a decedent’s estate is entitled would give a windfall to the defendant and literally make it cheaper to kill a single man than a married man with a family. Such a course of action is inconsistent with the policies articulated in Rohlfing.
I would hold that in connection with the award under HRS § 663-7 it was error for the circuit court to permit the jury to consider the cost of maintaining a hypothetical family. On the other hand, under HRS § 663-3 the jury awarded $30,000 to the appellant for pecuniary injury and loss of love and affection. This sum has been paid. Of course, there is no way of knowing how much of it, if any, was to compensate for pecuniary injury, i.e., loss of support, and how much was to compensate for loss of love and affection. In any event, retrial of the appellant’s claim under HRS § 663-7, which would be the only claim to be retried, poses no threat of double recovery; whatever sum the trier of fact finds would have been spent by the decedent in support of the appellant will by definition be excluded from the measure of probable net excess earnings.
*248C. The Hypothetical Questions
The appellant’s expert economist testified on direct examination that, in his opinion, the present value of the decedent’s probable excess earnings should be determined on the basis of a 4% discount factor, the average yield of U.S. government bonds over a 50 year period. Over the appellant’s objection and subsequent motion to strike, the appellees were permitted to elicit an estimate from the witness based on a discount rate of 6%. The appellant argues that the assumption that 6% was a proper discount rate was unsupported by any evidence adduced at trial; she therefore maintains that to question the witness on that basis contravened the mandate of Barretto v. Akau, 51 Haw. 383, 388, 463 P.2d 917, 921 (1969), wherein we stated that:
While the authorities are divided on this issue, we think that in cross-examining an expert witness a question aimed at demonstrating an alternative theory or contesting a substantive element of the case may be based on (1) those facts already in evidence, (2) those facts which are the proper subject of judicial notice, and (3) those facts which the cross-examiner in good faith anticipates he will establish later in the trial. If the cross-examiner fails to prove the facts assumed in his hypothetical question, then a motion to strike by opposing counsel is appropriate to cure the defect. (Citations omitted.)
I think that a proper foundation was laid for calculation of present value based on a 6% discount rate, and that therefore the circuit court did not err in permitting the questions. The expert witness testified on cross-examination that several varieties of investments would currently yield greater than a 6% return. Although he maintained that to reduce future excess earnings to present value at that rate would not be economically “rational,” in light of the risk which an investor would be required *249to take in order to obtain that rate of return, the question was ultimately one for the trier of fact to resolve on the basis of the evidence presented.
D. The Requested Jury Instructions
I am in agreement with the majority’s opinion on this issue.
The appellant relies upon Kawamoto v. Yasutake, 49 Haw. 42, 51, 410 P.2d 976, 981 (1966), for the proposition that “the incidence of taxation is not a proper fact for a jury’s consideration since ‘it introduces a wholly collateral matter into the damage issue.’ ” The principle underlying that case is not applicable to the issue presented in the instant appeal, since it dealt with an attempt to have the jury told, in fixing damages for personal injury, that the award is not taxable. Here, the question is whether the jury should properly be instructed to take into account the fact that future earnings would be taxable.
I am aware of the warning in McWeeney that an added benefit might be bestowed upon the estates of decedents whose income levels were extraordinarily high. However, this possibility is counterbalanced by the salutary effect of the rule upon "the great mass of litigation at the lower or middle reach of the income scale, where future income is fairly predictable, added exemptions or deductions drastically affect the tax and, for the reasons indicated, the plaintiff is almost certain to be undercompensated in any event.” McWeeney v. New York, New Haven & Hartford Railroad Company, 282 F.2d 34, 39 (2d Cir. 1960), cert. denied, 364 U.S. 870 (1960). But cf. Hartz v. United States, 415 F.2d 259, 264 (5th Cir. 1969); Cox v. Northwest Airlines, Inc., 379 F.2d 893, 896 (7th Cir. 1967), cert. denied, 389 U.S. 1044 (1968).