*1 TRUCKING, INC., ELMER BUCHTA (Defendant Below),

Appellant Larry Stanley STANLEY Representatives of

as Co-Personal Stanley, Appel

Estate of Michael G. Below). (Plaintiffs

lees

No. 14S01-0002-CV-114.

Supreme Court of Indiana.

March *2 Cox, Wagner,

Robert F. Dina M. India- IN, Born, napolis, Timothy M. D. Shawn IN, Sullivan, Evansville, Attorneys Ap- pellant. Johnson, In- Drummy,

John B. Erie D. IN, Johnson, dianapolis, James D. Evans- ville, IN, Attorneys for Amicus Curiae De- fense Counsel of Indiana. Trial Bowers, Evansville, IN, Wesley F. At- torney for Amicus Curiae. Fisher, Miller, R. Debra H. In-

James IN, dianapolis, Attorneys Appellee. Conour, IN, At- Indianapolis, William F. torney for Amicus Indiana Trial Curiae Lawyers Association.

ON PETITION TO TRANSFER SHEPARD, Chief Justice. statute, Under Indiana's decedent's estate recover deceased, earnings for the lost among things. This has been portion understood not to include that him- decedent's that the decedent per- self would have consumed for his own sonal and maintenance. question here is whether the legislature Consumption it I. Evidence of Personal in 1965. We conclude changed that rule not. did Buchta first asserts that the History

Facts and Procedural court erred evidence about prohibiting Stanley's personal consumption.1 Stanley was fatal- July with injured a vehicular collision ly At Wrongful A. Death Statute com *3 Leslie, employee of Elmer Luther an law, liability there was no in for mon tort ("Buchta"). Trucking, the death of another. Ed Wiersma Truck Inc. Stan- him. three children survived ley's wife and Pfaff, 678 N.E.2d 110 ing Co. (Ind.Ct.App. adopting, 648 N.E.2d 1996, Stanley's estate In December 1994). Assembly In the General Leslie's estate ("Stanley") against filed suit passed predecessor the statute to our cur ("Leslie") Leslic and Buchta. Buchta and law, allowing personal representa the rent that Les- liability, acknowledging admitted bring a deceased to an action for tive of Stanley's death and negligence lie's caused limiting damages death but to wrongful vicariously Buchta was liable for dam- that $5,000. damages Id. The recovered inured wrongful under the ages recoverable surviving spouse to the benefit of the and the suit Stanley then dismissed statute. children, if the kin. any, or to next of Id. proceeded and to against Leslie damages. the issue of against Buchta on legislature The has amended the act a many during intervening times the good trial, filed motions Stanley Before two has, century example, and a half. It about seeking limine to exclude evidence dependency requirement added the anticipat- amount of Michael the : to the decedent's children and relation Stanley himself would earnings ed kin, next of added a third class of "death had he lived. The trial have consumed beneficiaries, and increased the creditor" the motions. court granted recovery. Id. limits on trial, George economist Stanley At called reached its By the statute had testify the amount of lost Launey to about form, recognizes three present which earnings Stanley's estate suffered because provides classes of beneficiaries testified, Launey Before of his death. representative proper the personal the is prove regarding an offer to Buchta made damages an action for party to maintain that he Stanley's earnings amount the of the estate beneficiaries. for the benefit personal ex- would have consumed (West Ann. 34-23-1-1 See life. throughout or maintenance penses 1999). medical, fu- hospital, Damages Lau- prove to revealed that had The offer the expenses inure to neral and burial so, have allowed to do he would ney been ex- payment to the of these estate and be earnings the amount of lost the remainder penses, while percent. by twenty-four about reduced of the dece- the exclusive benefit inure to the trial Having prove, heard the offer to children, if dependent spouse dent's personal evidence of court still excluded kin. Id. dependent the next of any, or to consumption. pertinent of the statute portion The jury returned a verdict favor reads as follows: present the case now Appeals affirmed. Stanley. The Court by is caused the death of one Trucking, Stanley, Inc. v. When Elmer Buchta another, wrongful act or omission of (Ind.Ct.App.1999). the We representative of for- transfer. granted prove. an offer to pre- The defendant also made Thus, Stanley that Buchta failed to claims appeal fully presented it did not this issue for because issue was serve exclusion trial, and the defendant dam- object preliminary to the court instructions on ages, establishing the "law of the case." thus appeal. on waive the claim of error did not trial, sought disagree. At the defendant We Barnes, 603 N.E.2d See Barnes by barred the trial court's rulings plaintiffs' motions in limine. on the Thus, may by parties. mer maintain an action therefore tions advocated legislature's purpose latter, examine the in enact- ... against When the death wrongful of one is caused act or doing death statute. another, the omission of action shall be so, hardly writing on a clean slate. personal representa- commenced Indiana's courts held that (2) years, tive of the within two decedent purpose death statute was shall an be provide "to create a cause of action be determined may amount as means which who those have sustained jury, including, court or but not limited a loss reason of the death to, medical, hospital, reasonable funeral Pickens, compensated." In re Estate of expenses, burial and lost person resulting such deceased from "Pecuniary loss is the foundation *4 wrongful act or omission. action, wrongful of a and the dam- Ann. {emphasis 34-28-1-1 ages pecuniary are limited to the loss suf- added). by fered those whose benefit the action Statutory Interpretation. B. Wiersma, may be maintained." 643 deciding questions statutory When in of (citations omitted). N.E.2d at 911 "Peeu- terpretation, appellate courts need de not determined, niary part, loss can be from interpretation fer to a trial court's the assistance that would decedent Rather, meaning. indepen statute's provided services, through money, have or dently review the meaning statute's other material benefits." Id. apply it to the facts of the case under Staggs, Consolidated Stone Co. v. 164 Inc., Figg Bryan review. See v. Rental (1905), 73 N.E. (Ind.Ct.App.1995), 646 N.E.2d 69 trans. following Court said the about the measure unambiguous, denied. If a statute is damages wrongful from death: it, interpret not but must ours, a gives Under statute like which plain meaning. statute its clear and In re action, a right new distinct from that Grissom, (Ind.1992). 587 N.E.2d 114 If a which the deceased might have main- however, ambiguous, statute is we must tained, damages the measure of is com- legislature's ascertain the intent inter pensation pecuniary for the loss sus- pret the statute so as to effectuate party parties tained or State, intent. Whitacre v. 629 N.E.2d 1286 the benefit of the action. The in- sole adopting, 619 N.E.2d quiry many necessary is how dollars are (Ind.Ct.App.1993). A ambiguous statute is compensate the beneficiaries for the susceptible where it is to more than one pecuniary loss caused to them Laird, interpretation. Amoco Prod. Co. v. damages death. The 622 N.E.2d 912 to be estimated at the value of the life Here, Buchta and Stanley disagree lost, but at such compen- a sum as will import about the "lost earn persons sate the on whose behalf the ings person." [the] deceased ig action brought pecuniary inju- for the argues that since the statute does not ex ry they which sustained plicitly mention a deduction for the de death. personal ceased's living expenses, such a (citations Id. quotation and internal deduction should be Conversely, allowed. omitted). Stanley argues marks says that since the statute damages "shall include" the lost earn reading, Consistent with this the statute deceased, ings of the does mention has been understood contemplate a personal deductions for expenses, such a deduction for personal the amount of main- prohibited. deduction is tenance that the decedent would arguably sup- words of the statute have incurred over remainder of ports both of competing interpreta- lifetime. be reduced to ac- figures these the extent tending to establish

As losses, to consider the proper it is personal these and busi- [decedent's] count expenses. ness earnings of the husband probable future health, father, strength, age, and his Id., habits, and ca- opportunities occupation, Thus, applying this consider- are elements of pability compensate the deceased's death statute to rule recognize the These cases ation. suffer, they for losses the de beneficiaries be sub- gross earnings should that the permitted present fendant should be rea- on account of the ject to deduction personal of the deceased's con support and that cost of his own sonable juries the de sumption. If cannot deduct award- payment of the sum personal living expenses from lost ceased's proper cireumstance is a ed the amount of the award will earnings, which shall determining the amount necessarily exceed the actual financial loss equivalent of the earn- allowed as the experienced the beneficiaries. This re the deceased. capacity of contemplated not one the statute. sult is Cincinnati, Chicago, & St. Pittsburg, Therefore, proper measure Burton, Ry. Louis Co. based on the must include deduction (1894); Rich see also 37 N.E. maintenance. costs of this Reeves, Ind.App. Corp. mond Gas *5 Moreover, (1973) says that 795, the statute 338, 364, (citing N.E.2d 813 302 in an amount as "damages shall be favorably). Voight language the jury," the court or may be determined they jury The court instructed 34-238-1-1, and determination "a assess as were in pecuniary partic loss a of the amount of amount the deceased equal to the sum a recognized been as ular case has earned, as might have shown Bouras, 423 jury. function State evidence, to exceed the sum 741, (Ind.Ct.App.1981) (citing 746 N.E.2d life, $10,000 in period of his Johnson, R.R. New York Central Co. probably earned which he would 603, 457, 463, 127 N.E.2d 606 234 Ind. deducting therefrom reason- money, (1955); Henschen v. New York Central support, making of his own able cost 738, Co., Ind. 60 N.E.2d R.R. 223 payment for the a fair deduction (1945)); also Stone 740 see Consolidated of said sum." 331, Co., For this 73 N.E. 695. 164 Voight, Mississippi Ry. Co. v. &Ohio reason, to consid juries should be allowed 295-96, 23 N.E. 776 determin er all of the available of loss to the deceased's the extent ing Pickens, 255 Ind. in the 1970 case of As beneficiaries. no repeated N.E.2d actual juries account That recovery in Bur the measure of tion about object loss has been held financial State, N.E.2d 664 nett v. Century from the Nineteenth the statute jury prop a which we considered whether can- two decades. We through to the last damages under erly assessed to alter that desire legislative not find and wrote: death statute amend- relatively general in the formula bar, purpose of at for the the case adopted thirty-six years back. ments jury a basis for a assessment providing we conclude that Accordingly, introduced in- earnings, plaintiff of lost Stanley's mo granting erred in satisfy the trial court but did not figures, come preventing and in tions limine to how to translate jury's need know regarding the introducing evidence from approximation into an those amounts that Michael his lost amount of monetary loss she suffered the actual consumed Stanley would have death. She did of [decedent's] reason throughout his life. indicate, much example, by how (R. 403; Jury Proposed at Final II. Instructions Defendant's 8.) Instruction No. the trial Buchta also contends jury The giving of instructions lies refusing proposed two of its court erred discretion, within the trial court's sound in jury The two tendered instructions, : and we review the court's refusal to a structions read instruction for an abuse of that tendered proceeding of this purpose It is not the Trans., Kirby, discretion. CSX Inc. v. punish Trucking, Elmer Buchta Inc. to (Ind.Ct.App.1997), trans. de Stanley. for the death of Michael G. nied. Instead, damages you award must In determining whether it is money limited that amount of instruction, error a tendered refuse compensate required which is 1) consider whether instruction cor Stanley and her three children 2) law, rectly states the whether there is pecuniary they for their loss have sus- supporting evidence in the record the in tained reason of G. 3) struction, and whether the substance of determined, in death. This loss canbe in the instruction is covered part, from the assistance that the dece- structions. Peak v. Campbell, 578 N.E.2d provided dent through would have mon- Moreover, one seek services, ey, or other material benefits. improp new trial on the basis of an However, this loss also includes the loss jury er instruction must show "a reason parental training the children of probability rights able that substantial guidance and loss of love and affec- complaining party have been adverse spouse. surviving tion to the ly (quoting affected." Id. at 862 Sullivan (R. 401; Proposed Defendant's Final Homes, Inc, v. Fairmont 6.) No. Instruction 1130, 1140 (Ind.Ct.App.1989)). *6 law, your Under Indiana award for dam- the final giv Our review of instructions ages may in this death case at en trial reveals that the court delineated sorrow, grief, include or the elements of un recoverable feelings. wounded (R. der the death statute.2 at Specifically, the instruction read: Stanley, Brooke the reasonable value of the care, affection, parental personal representatives The of the estate loss of and love training guidance Stanley are entitled to recover benefit of and that Brooke estate, Stanley's Michael the reasonable fu- reasonably expected to receive from the neral and burial of Michael Stan- father, continued life of her Michael Stan- ley. ley. personal representatives The of the estate personal representatives The of the estate are also entitled to recover for the benefit of are also entitled to recover for the benefit of Brooke, Stanley, Maithew and Stanley, Matthew the reasonable value of Casey Stanley, the lost of Michael care, affection, parental the loss of love and Stanley resulting from his death. In deter- training guidance Stanley and that Maithew mining earnings, you Michael lost reasonably expected to receive from the age, consider his health and normal father, continued life of his Michael Stan- expectancy, immediately life before the in- ley. death, jury causing Michael Stan- Finally, personal representatives ley's occupation earning capacity. estate are also recover for the personal representatives The of estate Casey Stanley, the reasonable val- benefit recover, are also entitled to for the benefil care, affection, ue of the loss of love and Stanley, of Christina the reasonable value of training parental guidance Casey that care, companionship, the loss of love and Stanley reasonably expected to receive from Stanley reasonably affection that Christina father, expected to receive from the continued life the continued life of her Michael husband, Stanley. Stanley. of her Michael death, personal representatives The of the estate Stanley At the time of his years expectancy are also entitled to recover benefit of was 32 old and had a life majority errs that ous. I believe Indeed, not chal 406-07.) does it a assigning In construing this instruction. propriety lenge stead, ordinary the court plain and contrary it contends that meaning ele jury Judge on the Staton analysis I instructed find usage. also entitled Stanley was not Appeals to be for which the Court of ments behalf of on affirm satisfactory, and would more to recover. court. trial an to refuse not error It is is sub subject matter when instruction instructions

stantially covered Get-N-Go, Inc. v. court. by the

given

Markins, N.E.2d a court

Moreover, require we do jury when the negative instructions

read through a instructed properly has been PATTERSON, Appellant- Samuel issue. See on the same instruction positive Caldwell, 273 Defendant, Corp. v. Dayton Walther "[al also instructed jury was Appellee-Plaintiff. Indiana, STATE fair same entitled to the is corporation No. 46A03-0003-CR-109. individu- private hands as is your at plaintiff's burden told of the and was al" Appeals of Indiana. Court rationally sufficient "providing 402.) (R. Last- damages." assess 16, 2001. Feb. their jurors instructed the court ly, conjec- "mere on not be based could award (R. at ture, guesswork." or speculation,

402.) Buchta's court's refusal

The trial not constitute does instructions

tendered error.

reversible

Conclusion in- concerning Buchta's claims

While *7 refus- the court's unavailing,

structions deceased's evidence about permit

al to error. was reversible consumption trial. for a new remand

We RUCKER, BOEHM,

SULLIVAN,

JJ., concur. J., separate

DICKSON, with dissents

opinion. Justice,

DICKSON, dissenting. Act declares Wrongful Death earnings of "lost shall include resulting from person deceased agree I cannot act or omission." ambigu- earnings" is "lost 406-07.) (R. ai would be years, which of an additional age