Hurtig v. Bjork

Garfield, C. J.

Waldo Hurtig, as administrator of the estate of his little daughter Vicki, brought this law action to recover for her death from injuries received when struck by defendant Bjork’s auto after she alighted from a school bus. Defendant admitted liability and the amount of recovery was submitted to a jury which returned a verdict of $28,000. On defendant’s motion for new trial the court ruled this was excessive and ordered a new trial unless plaintiff remitted $16,000 from the verdict. Plaintiff appealed from this order.

The single assigned error asserts the verdict is sustained by sufficient evidence, is not excessive and not the result of passion and prejudice of the jury.

Vicki was fatally injured December 19, 1963, about 5 p.m. Her age was five years, ten months and 21 days. She died at 8 :05 the same evening from a basal skull fracture. According to the 1958 mortality table approved by the state commissioner of insurance, found at page 2728, Code, 1962, the life expectancy of a child of six is 63.27 years, and of a person 21 it is 49.46 years.

*157I. The measure of damages in this state for death of a minor is well settled. It is correctly stated in instruction 3.10b of Iowa Uniform Jury Instructions prepared by a committee of the Iowa State Bar Association. The trial court used it here in instruction 7. It states in part:

“The measure of damages for the death of Yield Hurtig, a minor, will be the present worth or value' of the estate which she would reasonably be 'expected to have saved and accumulated as a result of her own efforts from the date of her majority, if' she had lived out the term of her natural life. * * * In determining that amount you shall exclude the sum which she would have accumulated from the date of her death to the date of her attaining! her majority.
“In estimating such damages, if any, you may and should consider the evidence on the expectancy of life of Vicki Hurtig, deceased, her health, physical and mental condition, her morals, her habits as to industry, thrift and economy, her interest in school, her grades and attendance, the occupation of her father, the contingencies of life such as ill health, unemployment, increase or diminution of earning capacity as age advances, and all other facts and circumstances in the evidence tending to show the amount, if any, that her estate might have accumulated from the date of her majority if she had not met death in the accident * *

To the sum arrived at under instruction 7 tvro other sums could properly be added under instructions 8 and 9 : 1) Interest on the reasonable funeral expense for such time as it was prematurely incurred, not to exceed $921, the amount of such expense. Soreide v. Vilas & Co., 247 Iowa 1139, 1153, 78 N.W.2d 41, 49, and citations; Mallinger v. Brussow, 252 Iowa 54, 57, 105 N.W.2d 626, 628. 2) Such amount as will fairly and reasonably compensate for the pain and suffering of decedent during the three hours she survived the accident. Iowa Uniform Jury Instruction 3.9; Fitzgerald v. Hale, 247 Iowa 1194, 1205, 78 N.W.d 509, 515, overruling prior contrary decisions.

No objection to any instruction was made. Plaintiff’s counsel announced there was none. The instructions therefore stand as the law of the case. Neibert v. Stone, 247 Iowa 366, 368, *15873 N.W.2d 763, 764, and citations; Mallinger v. Brussow, supra, 252 Iowa 54, 61, 105 N.W.2d 626, 630. We will refer to other applicable legal propositions following an outline of the evidence.

II. Vicki was the second of four children — all girls — -born to her parents. She was in her first year at a Lutheran school in Paullina; she was obedient, did her schoolwork well, had an A grade, got along well and was liked by schoolmates, was happy, healthy, prompt, neat, clean and “real pretty.” She put small coins in a piggy bank the little girls had.

Vicki’s father, Waldo, was a trucker, 31 at time of trial in November 1964. He married Ila, Vicki’s mother, when she was 16. Bach attended school to- the eighth grade; this is also true of Waldo’s parents. Ila had a cerebral hemorrhage in 1955 which left her with some- paralysis and she never fully recovered. She died at 21 in November 1959 when her fourth child was born. Waldo was in the army 23 months, was a corporal when discharged early in 1956. He had worked on farms before his army service. After his army discharge he farmed 160 acres of his grandmother’s five years. He then started trucking in February 1961.

Waldo received $325 a month for 13 months on his first trucking job. He then changed employers and was paid $80 a week. For the 18 months just preceding trial he drove a truck for a third employer, a Farmers elevator, at $100 a week plus a bonus arrangement of $15 to $17. He had a 1959 Dodge car, 50 hens, six ducks, furniture, appliances and household goods. He estimated his net worth at $3500. He and Ila had saved $2200 when they started farming. Waldo had a life insurance policy for $10,000 on which the premiums were deducted from his wages for the 18 months of his last employment. He did not know its value.

Waldo had total doctor and hospital bills between $6000' and $7000 which he paid except for a $25 doctor bill; Vicki’s burial expense of $921 was also unpaid. Ila was confined in an army hospital and a hospital in Cherokee after her “stroke.” The third child was hospitalized in Sioux City two to two and one-half months. At time of trial Waldo and family occupied, rent free, *159the dwelling on a farm of his grandmother’s near Paullina. The buildings would otherwise be unoccupied.

After Ila died Karen Jones, 24 at time of trial, went to take care of the family in August 1960 at the farm they were occupying. Waldo and Karen were married March 13, 1961. Karen’s daughter, born out of wedlock, also went to live with Waldo and his little girls; Karen took excellent care of the children. She had quit school in her second year of high school.

Waldo’s mother, Lucille, was 50 at .time of trial. Her father died when she was a year old. Her mother was still alive at 77. Waldo’s father, William, was 51 at time of trial. William’s father died from a heart attack at 62. His mother was still alive, also at 77. William and Lucille owned a farm of 160 acres in Iowa and one of 200- acres in Minnesota. Lucille testified, “I inherited this land from my father — that is, I inherited $3000.” Whether either farm is free from incumbrance and where in Minnesota the one farm is located do not appear.

Ila’s father, Clarence (Yield’s maternal grandfather), was 60 at time of trial; Ila’s mother, Mable, was 55. Clarence’s father died of hardening of the arteries at 69, his mother of cancer at 68. Clarence owned 300 acres of land. Whether it was incumbered does not appear . He testified, “My father owned land before I did.” His wife said her husband acquired some property from his parents when they died. Mable’s father died at 84, her mother at 79. The father owned land at one time but not at his death.

A professor at a small college in Orange City testified he foresees continued rising prices and a depreciating dollar because of heavy expenditures by government, business and consumers. An income of something like $7400 would be needed to match one of $3000 in 1939 and an acre of land would cost more than double its cost in 1939 because the purchasing power of the dollar has declined more than half in that 25-year period.

A retired banker of long experience said four percent is a safe return on an investment in savings and loan associations, banks and government bonds; first mortgages on farms would pay five and one-half percent but are hard to obtain; the low land value in the last 46 years in. the area where the parties lived *160was $150 per acre; no dramatic fluctuation has occurred in the return on safe investments in the last 40 to 45 years.

A certified accountant testified to amounts a dollar, invested at four percent and also' at five percent, would equal in given periods. A dollar invested at four percent for 49 years would equal $6.83, at five percent for that time would equal $10.92, at four percent for 63 years would equal $11.83, and at five percent for that time would equal $21.62.

Vicki was severely injured. She suffered a broken shoulder and upper arm, a punctured lung and a basal skull fracture. A salesman lifted her from the highway, canned her into the home and placed her on a bed. She was limp and “completely out.” An osteopathic physician arrived in a few minutes and examined her 15 to 20 minutes. When he moved her arm Vicki indicated pain. He did not think she “was injured that severely.”

Vicki was taken some 20 miles by ambulance at high speed to a Cherokee hospital. She arrived about 5:45, apparently unconscious, but regained consciousness in a few minutes. An unconscious person does not suffer pain. Part of the time Vicki was in the hospital she was semiconscious and felt pain although less than if she were conscious.

Vicki’s father and stepmother were attending a trucker’s convention in Sioux City when the accident occurred. They reached the hospital about 7:15 and saw Vicki briefly. She told her stepmother, “Mommy, my head hurts.” This was the only coherent statement any witness heard from her. At times she cried out incoherently.

III. Our problem is whether it was an abuse of discretion for the trial court to hold the verdict was excessive as not sustained by sufficient evidence.

“* * * The trial court has broad discretion in granting a new trial conditioned upon a remittitur to a set amount. We will not interfere with its ruling on a motion for new trial unless there appears to have been an abuse of discretion. [Citations] This discretion extends to the amount of the remittitur as well as the decision to grant or refuse a new tria].” Grant v. Thomas, 254 Iowa 581, 584, 585, 118 N.W.2d 545, 548; Larew v. Iowa State Highway Comm., 257 Iowa 64, 68, 130 N.W.2d 688, 690.

*161Nelson v. Iowa State Highway Comm., 253 Iowa 1248, 1254, 115 N.W.2d 695, 698, states, “The trial court has greater powers in granting a new trial or ordering a remittitur because of the size of the verdict than we do.” See also Burke v. Reiter, 241 Iowa 807, 817, 42 N.W.2d 907, 913, and citations; Steensland v. Iowa-Illinois Gas & Elec. Co., 242 Iowa 534, 536, 537, 47 N.W.2d 162, 163, and citations.

In re Estate of Hollis, 235 Iowa 753, 759, 16 N.W.2d 599, 602, a leading ease, says: “The question of whether the verdict was excessive was not one of law but was a question of fact under the record made, and the answer was one resting in the legal discretion of the court.” Among later precedents which approve the Hollis case is Nichols v. Snyder, 247 Iowa 1302, 1312, 78 N.W.2d 836, 842. It repeats what is just quoted.

It is so well established that authorities need not be cited in support of the proposition we are slower to interfere with the grant of a new trial than with its denial. Rule 344(f)4, Rules of Civil Procedure.

We have spoken at least three times on the effect of the declining purchasing power of the dollar in cases of this kind. Tedrow v. Fort Des Moines Community Services, 254 Iowa 193, 203, 204, 117 N.W.2d 62, 68, perhaps our latest expression on this point, states:

“We realize, of course, that the dollar is not what it used to be. Its purchasing power cannot fairly be compared with its value in the decades before the second world war. * * * It is also pertinent to say, as we have done before, that the present considerable devaluation of the purchasing power of our money, coupled with burdensome taxes, makes the problem of saving and accumulating much more difficult. This bears directly upon the amount of the estate a decedent might have accumulated but for his wrongful death. Hackman v. Beckwith, 245 Iowa 791, 808, 64 N.W.2d 275, 285; Soreide v. Vilas & Co., supra, 247 Iowa 1153, 78 N.W.2d 49, 50.”

IV. As explained in Division I hereof, the measure of plaintiff’s recovery for the child’s death to- be applied here is the present worth of the estate she would reasonably be expected to save and accumulate as a result of her efforts after reaching her *162majority if she had lived out her natural life. However, in computing present worth the child’s entire life expectancy is to be used. Hively v. Webster County (Ladd, J.), 117 Iowa 672, 91 N.W. 1041; Note 48 Iowa Law Beview 666, 687. Thus, theoretically, the sum allowed could be drawing interest for the 15 years before the time decedent would be entitled to any of her earnings if she had lived.

Nine hundred twenty-one dollars ($921) is the maximum that might be allowed under the court’s instructions for burial expense. It would seem clear it would not be an abuse of discretion for the trial court to hold $1000' is the largest award the evidence warrants for pain and suffering during the three hours Vicki survived the accident. She was either unconscious, with no pain, or only semiconscious, with reduced pain, during much of this brief interval.

This would leave $26,079 of the jury verdict as the present worth of what this little girl would reasonably be expected to accumulate from her efforts from the date of her majority if she lived her natural life. As stated, according to' the mortality tables received in evidence the normal expectancy of a child of six is 63.27 years and of a person 21 it is 49.46 years. According to> the record, $26,079, invested for 63 years at four percent, would equal some $308,000; and at five percent it would equal some $563,000.

We are not persuaded it would be an abuse of discretion for the trial court to conclude, as he might well have done, it is most improbable, under this evidence, that Vicki would accumulate from her efforts any such sum commencing from the time of her majority if she had lived. If the remittitur ordered here had been filed, $10,079 of the verdict would remain as the present worth of what the child would have accumulated from her efforts after majority. This sum, invested for 63 years at four percent, would equal some $119,000; and at five percent it would equal some $217,000.

Many of our decisions point out that comparison of verdicts is not a satisfactory method for determining whether an award in a particular case of this kind is excessive — each must be determined upon the evidence therein. Soreide v. Vilas & Co., *163supra, 247 Iowa 1139, 1153, 78 N.W.2d 41, 50, and citations; Brophy v. Iowa-Illinois Gas & Elec. Co., 254 Iowa 895, 900, 119 N.W.2d 865, 867. See also Tedrow v. Fort Des Moines Community Services, supra, 254 Iowa 193, 202, 117 N.W.2d 62, 67.

Nevertheless we may observe that this jury verdict is nearly twice as large as any award for death of a minor approved by this court. The largest such amount in any Iowa precedent called to our attention is $15,000 in the Tedrow case, supra. The jury verdict there was $22,500 for death of a 12-year-old girl which the trial court approved. Nevertheless, our unanimous decision (except for one judge who took no part) ordered a remittitur of all above $15,000.

If this jury verdict had been approved by the trial court and had come here upon defendant’s appeal with a claim it was • excessive as not sustained by sufficient evidence, perhaps we would have ordered a somewhat smaller amount remitted than did the trial court. We think this consideration would not justify a partial reduction of the remittitur here. Plaintiff does not suggest, and perhaps does not desire, such action by us. As indicated at the outset hereof, he asks that the entire verdict be reinstated. Then, too, for us to reduce the amount of the remittitur would seem to be inconsistent with the rule repeatedly stated by us that the trial court has greater discretion than we do in such a ruling as that appealed from. No ease of this kind has come to our attention in which we have ordered a reduction in the amount the trial court ordered remitted.

Y. No question of allowance of interest on the award is presented. The trial took place less than a year after the child’s death. However, upon another trial this period will be more than doubled and the allowance of interest will assume increased importance. We deem it proper to call attention to the fact that interest on the award from date of death may be allowed. See Bridenstine v. Iowa City Elec. Ry. Co., 181 Iowa 1124, 1135-1137, 165 N.W. 435; General Mills, Inc. v. Prall, 244 Iowa 218, 221, 56 N.W.2d 596, 598; Sisson v. Weathermon, 252 Iowa 786, 799, 800, 108 N.W.2d 585, 592, 593; Note 48 Iowa Law Review 666, 690, 691.

*164Since it does not .appear the order appealed from was an abuse of the trial court’s discretion it is- — Affirmed.

All Justices concur except Justice Becker, who dissents.