*1 authority There is that indicates ele statute. See Duval City, v. Midwest Auto Inc., (8th Cir.1978). ments of common law fraud the ele F.2d synon ments of 15 1989 are not U.S.C. § judgment affirm the We of the trial Nelson, 125, ymous. Vogt See 69 Wis.2d court. Furthermore, language no there is in the statute that WUEST, C.J., HENDERSON and SA- supports interpretation. Swenson’s Swen- BERS, JJ., McKEEVER, Judge, Circuit single authority sup son does not to cite concur. port position on We his this issue. have McKEEVER, Judge, sitting Circuit arguments often stated that that cite no FOSHEIM, J., disqualified. authority, is a which violation of SDCL 15-26A-60(6), may be deemed waived. again third un
Swenson’s issue is
supported by any authority. citation to event,
any argument presented disposed consequence may
little be
easily. jury The verdict form submitted FLAGTWET, A. Administratrix
read as follows: Estate of Arvid H. Appellant, Plaintiff and We, jury, duly impaneled in the above action, plaintiff against entitled find for the Joseph the defendant L. Swenson as follows: SMITH, Appellee. Dawn Defendant and (fraud) First cause of action damages. $-actual No. 15241. $_punitive damages. (violation Second cause of action of odometer Supreme Court of Dakota. South statute) May Considered Briefs representing: $3765.36 - nn ^.Actual damages Sept. Decided _To tripled be You should not award actual on more than one cause of action. given Swenson “that jury claims
an opportunity triple if
they they not, so wished there did Judgment
fore entering the Court erred in jury’s
for more than the Swen- verdict.”
son simply misreads 1989.* 15 U.S.C. § requirements of the are not statute
permissive, they mandatory. The stat
ute, essence, states that the successful triple shall recover
$1500, greater, whichever is re shall attorney’s
cover fees. At least one court
has mandatory noted the of the nature
* pertinent (1) part 15 U.S.C. three § 1989 reads: times the amount of actual dam- $1,500, ages sustained or whichever is the who, (a) defraud, Any person with intent greater; and any requirement imposed violates this under (2) in the case of successful action to subchapter equal shall liable in an amount liability, foregoing enforce costs of the to the stun of— together attorney action with reasonable fees as determined the court. *2 Groseclose, Jr., Richardson, A.
Chester Groseclose, Aberdeen, Wyly, Kommann & appellee. for defendant and SABERS, Justice. remand, A. Beverly
After administratrix, appeals money judgment a companionship of for the loss of grossly of her husband as inade- quate. We reverse and remand. AND FACTS CASE HISTORY a) Appeal First Trial and Flagtwet injuries Arvid died of sustained in an automobile accident with a vehicle Flagtwet driven Dawn Smith. See: Smith, Pursu- 21-5, Beverly brought ant to SDCL a wrongful against death action Smith for the benefit of her children and herself. actions, wrongful damages may death “proportionate to the be awarded which pecuniary injury resulting from such death persons respectively for whose to the bene- brought.” fit such action shall be SDCL testimony upon 21-5-7. Based of an expert, economics the trial court concluded pecuniary that Arvid’s estate had sustained $268,312. This sum included of home services1 of less the value of 31%, consumption excluded personal but companionship loss of sum for society.
Beverly sought for the loss also society. companionship and of Arvid’s monetary Beverly’s expert place did not nor did offer an this loss The trial opinion of its value. injury” “pecuniary held that the term 21-5-7, strictly encompassed eco- SDCL Fisher, Hughes, nomic loss and refused to award Gale E. Fisher & Sioux Falls, society. companionship and appellant. for the loss of Apparently experts can arrive at dollar 1. “Home services” means the work a decedent using did around the home that the survivor now has amounts for such losses “standard perform of the death. Home or hire because techniques.” generally: Wyatt v. See worth mowing, repairs, typically services include States, F.Supp. United (W.D.Mo.1979). shoveling. The trial court based the home snow Arvid, service evaluation on the fact that hobby whose carpentry, was worked around the home valued same at the four hours a week and wage. minimum them appealed skiing When this case them and water first “startfed] [sic] time, fishing.” that: this court held age [RJegardless of the decedent family Arvid advised the on business and action, it proper in a death Socially, Beverly matters. financial trier fact to consider loss They Arvid an life at the lake. had active companionship decedent’s They went to dances and movies. enter- resulting from when such death deter- *3 tained in their home and visited friends in mining pecuniary the injury per- to the They primarily their homes. vacationed at for sons whose benefit action such is lake, trips but also took occasional in a
brought under SDCL 21-6-7. They motor home. loved to travel. There at 189. Flagtwet mention their was no sexual relation- ship. The court further held that trier of fact of companionship could consider the loss death, Beverly Since Arvid’s sold the society expressed by, and as not but limited longer goes lake cabin and no to lake.
to,
“advice,”
the words
“assistance” and
death,
participated
Since his
she has not
“protection,”
for
without consideration
any of these activities and feels she doesn’t
grief
anguish.
survivors’
and mental
“really belong anywhere.”
adopted
The trial
Beverly’s pro-
b) Remand
posed findings
rejected
of fact but
her con-
present-
On remand no new evidence was
$50,000
clusion that she be awarded
for the
ed.
trial
it Beverly’s
The
court had before
companionship ($2,000 per year
loss of
for
testimony
expert’s depositions
trial
and
twenty-five years,
expectancy).3
Arvid’s life
and calculations.
Instead,
$2,500.4
the trial court awarded
concerning companionship
The facts
and
decision,
In the memorandum
which was
society
not disputed.
At the time of his
incorporated
findings
into the
under SDCL
death,
old,
fifty
Arvid
years
was
his life
15-6-52(a), the
court explained:
trial
expectancy
twenty-five years.
was
Bever-
pointed
Defendant
has
out that
[Smith]
ly
fifty
expectancy
was also
and had a life
damages already
by
there were
awarded
thirty years. They
had
married
been
for
the Court for “home services” which
twenty-nine years and had
adult chil-
two
$17,000
were
a
valued at
before
deduc-
dren, Vicki, age twenty-five,
who
liv-
personal consumption
tion for
as well as
ing
Brookings
and married with three
other items
relate
which
to advice and
children,
Greg, age seventeen,
and
who
taking
assistance. After
all these items
lived at home at the time of his father’s
into consideration the Court feels that
death,
who
prior
but
to California
to
moved
to an
should
entitled
addi-
trial.
compan-
tional award of
for loss of
$2500
ionship
society
of her husband.
testify
children did not
about their
companionship
Beverly
with their father.
1.
THE
WAS
AWARD DIVISIBLE?
testified, however, that when the children
family spent
argues
were smaller the
judg-
summers at
Smith
that
the amended
and,
their
they
generous
lake cabin
fished
ment
where
is
as the trial court
children,
family.
intended, indivisible,
boated
proper
Vicki’s
she
that
it was
said,
strong,
relationship
had a
warm
to
with
use the amount awarded for home ser-
grandfather.
their
help
He watched out
support
adequacy.
for
vices to
its
Beverly
propose any separate
spe-
among
did not
distributed
the decedent’s
cific
for
her children’s loss of
death beneficiaries. SDCL21-5-8.
companionship
and claims that the
any provision
court did not make
for the chil-
per year
only
is
claims that this
$100
However,
argues
agree,
dren.
However, $2,500
Smith
and we
twenty-five years.
for
stantially
is sub-
purport
that the trial court
did
determine
pay-
more than the
value of
part
damage
how
of award would be
per year
twenty-five years.
$100
ments of
for
ages
question
be determined
to be awarded
a factual issue to be
The first
original
fact,
award of
by
the trier of
is whether
determined
we review
personal
less
appeal
clearly
for home services
31%
under the
the issue on
erro
help sup
consumption can be included
Flagtwet
standard.”
at
citing
neous
later award of
port the trial court’s
Brown,
Pope v.
companionship.
loss of
Additionally, this court has noted the im
trial,
expressly de
the trial court
the first
formulating
a definite
possibility
rule
companionship
damages for loss of
nied
whereby
money
the loss of consortium in
reversing
society. The
reason for
sole
and has
can be determined
allowed the trier
remanding the case was because these
Keller,
Morey
of fact “wide latitude.”
considered when
elements had not been
(1957).5
S.D.
initially deter
Beverly’s
were
this court considers
When
whether a
supra.
question
A
mined.
damage
adequate,
award is
the measure is
supreme court on a
decided
law
not the difference between the factfinder’s
of the case
appeal
the law
former
becomes
*4
of
award and what the members
this court
stages.
subsequent
in all its
Jordan v.
allow; rather,
would
this court looks to see
(1945).
O’Brien,
393,
30
18 N.W.2d
70 S.D.
mankind,
whether the
“strike
at
Therefore,
the
now claim that
Smith cannot
blush,
being,
measure,
beyond
first
all
money
some
already
awarded
trial
outrageous,
unreasonable and
and such as
for those elements.
manifestly
jury
show the
[factfinder]
argues that
there was
Smith also
“[i]f
passion, partiality,
by
have been actuated
trial,
requiring
new
...
the entire
error
corruption.”
or
Line
prejudice
Weidner v.
Although
award should be reexamined.”
597, 603
back, 82 S.D.
140 N.W.2d
argument
initially appears to
this
have
(1966).
merit,
reject it
the
some
must
because
we
final,
prior
divisible and
award
both
Beverly argues that the award of
previously upheld the trial
and because we
shockingly
per-
low that it cannot be
is so
analysis as
adoption
expert’s
court’s
of the
argues that
mitted to stand. She
damages. Flagtwet, su-
to the amount of
relationship to
no reasonable
award bears
pra.
compensated and cannot
the loss to be
supported by the facts and circumstances
question to be determined is:
The next
numerous
of this case. Both sides submit
THE
IS
2. WHETHER
SUM OF
courts where similar
by numerous
cases
ADEQUATE
A
COMPENSATION TO
adequate
found to be
have been
AND TWO ADULT CHIL-
WIDOW
help-
these cases are
inadequate.
or
While
DREN FOR LOSS OF COMPANION-
ful, they
not determinative.
SOCIETY,
EX-
AND
AS
SHIP
ADVICE,
case, it is difficult to mea
any
BY THE TERMS
PRESSED
In
PROTECTION,
the loss of
monetary
ASSISTANCE AND
value of
sure the
FOR
society.
WITHOUT CONSIDERATION
It is also diffi
companionship and
AN-
THEIR
AND MENTAL
grief
GRIEF
exclude consideration
cult to
GUISH?
by the
anguish suffered
benefi
mental
Although it is difficult to measure
ciaries.
actions,
plain
death
advice, as
monetary value of a man’s
proving
pecuni
tiff has the burden of
case,
any
protection in
it is
sistance and
ary
resulting from the death of the
loss
inade
Root,
in
case that the award was
431 clear
this
decedent.
v.
Gilbert
quate.
the value of Arvid’s ad-
the amount of dam-
Consider
“[BJecause
hinted,
Corp. Higginbotham,
U.S.
Supreme
ery.
436
Court has
Mobil Oil
5. The United States
2010,
decided,
618,
competing
Con-
yet
S.Ct.
tection Appellant, Plaintiff and storms. loss Consider their that, all and their loss the desire do many things of those without him. Consid- SMITH, Francis M. Defendant Beverly’s feeling belonging er any- of not Appellee. advice, she his where because is without protection. assistance and No. 15003. Even without consideration for the Supreme Court South Dakota.
grief anguish suffered mental beneficiaries, value of Ar- Considered on Briefs Nov. advice, and protection vid’s assistance Sept. Decided years twenty-five expectancy of his life $2,500. clearly duty exceeds Since it our award, it,
to review the we set must
reverse and remand trial court for adequate
an award.
WUEST, C.J., MORGAN, J., concur.
HENDERSON, J., concurs result.
FOSHEIM, J., dissents.
FOSHEIM, (dissenting). Justice damages
Mindful that no award will compensate
adequately decedent’s wife and loss,
adult children for their I nevertheless
dissent. However, The award is low. amorphous requires for losses
that factfinder “must be a wide allowed Morey Keller,
latitude.” 77 S.D. That extremely
are awarded in an liberal ex-
tremely conservative fashion does not
alone allow this judg- Court to disturb Howe,
ment. Hotovec S.D. (1961) (“extremely
N.W.2d 748 liberal” affirmed).
award The does award “manifestly show” the court below “passion, partiality,
motivated preju- or corruption" necessary
dice for this Court
to disturb its decision. court’s award appellant’s other seemingly losses are
adequate undisputed. Since the award entirety fair, appears I
cannot conclude the court was motivated
by any of impro- the four above mentioned
prieties fixing single area dam-
ages appealed from.