*1 18.4
support payments constituted an invalid
retrospective original modification of the
divorce decree.
Appellant argues appellee concedes computation judg- interest incorrect,
ment and that the correct $4,541.20 ($3,749.20
amount should be 1, 1978,
October $792.00 October judgment). the date of modify judgment by therefore
amending the interest allowed to read
$4,541.20, modified, and as so the judgment
is affirmed.
theAll Justices concur. Mach, R. and Laddie S.
Yvonne KRUMM the Estate Michael
Co-Executors Deceased, Ap- Plaintiffs H.
pellants, FEUERHELM, D. Defendant
Glenn Appellee. Mach, and Laddie S.
Yvonne R. KRUMM Helen E. Estate Co-Executors
Weber, Deceased, Appel-
lants, FEUERHELM, D. Defendant
Glenn Appellee. GROSS, the Estate
David D. Executor of Deceased, Mechtenberg,
of Alice L. Appellant,
Plaintiff FEUERHELM, D. Defendant
Glenn Appellee.
No. 12977.
Supreme Dakota. of South Court Sept.
Argued 1980.
Decided Nov.
Rehearing Denied Dec. 1980.
187
Using specially prepared forms, verdict separate returned verdicts as fol- lows:
1. For the co-executors of the estate of
Helen E. Weber in the total sum of $6,081allocated to reasonable funeral expenses of and loss of dece- dent’s brothers, counsel to her sis- ters, nephews $3,500. and nieces of 2. For the co-executors of the estate of
Michael H. Weber in the total sum of $9,055allocated to reasonable funeral *4 $2,555; expenses of conscious $500; and suffering of and of loss Brady, M. Kabeise- Steven Johnson of society, companionship, aid and coun- Johnson, man, Reade, Yankton, Abbott & surviving sel Michael’s children of appellants. $6,000. Craig Kennedy Doyle, A. Bierle Por- of & 3. For the executor of the Al- estate of ter, Yankton, appellee. Mechtenberg for defendant and ice L. in the total sum
of allocated to reasonable $1,210; HEEGE, expenses medical of Judge. reasona- Circuit $2,465; expenses ble funeral of con- This action arises out of an automobile $1,000; scious 13, 1978, August accident that on occurred loss of County, in Hutchinson South Dakota. counsel to her brothers and accident, As a result of the Helen E. $3,000; damage sister of to the husband, instantly; Weber died Helen’s Mi- automobile, Plymouth 1966 $200. chael H. was dead on arrival at the trial, claiming for new Plaintiffs moved Hospital Freeman more than an hour after inadequacy of the awards and errors at law. accident; Mechtenberg Alice L. died plaintiffs’ The trial court denied motions approximately four and one-half hours la- for new trial. We affirm. Valley ter at Hospital Sioux in Falls. Sioux A discussion of the claimed errors at law deaths, At the times their respective considering stage would best set the Helen sixty-five years E. Weber was inadequate claim of awards. two; age; seventy Michael H. Weber was Mechtenberg seventy-two. and Alice L. was I. All were in normal health. The trial court instructed the by repre- Actions were commenced insert in verdict for the Alice L. Me- its (1) sentatives of estate for each decedent’s $635, chtenberg estate the sum of death, wrongful (2) pain and suf- of the loss stipulated amount expenses and medical in Michael Plymouth automo- Mechtenberg to the 1966 cases, Mechtenberg H. Weber and Alice L. Instead, inserted in the blank bile. (3) damage car to the Alice L. Mechten- following phrase “Damage the 1966 berg estate. Plymouth automobile” the sum of $200. The cases the claims were consolidat- The trial court viewed this as clerical a ed for trial. ver- error and corrected negligence Defendant admitted his hearing plaintiff at the on Gross’ mo- dict legal injuries, liability for the deaths and for new trial. com- tion Plaintiff Gross only was instructed that an unauthorized “addi- plains that this was issue them. before tur.”
188 the beneficiar- loss” sustained cuniary is not techni
This verdict increase the ma- economist testified in Dimick ies.2 The struck down cally “additur” 296, he used for 474, the data which jority 79 Schiedt, 55 S.Ct. v. 293 U.S. was derived opinions (1935). Although a calculations L.Ed. 603 agencies. federal judgment publications of various may its generally not substitute - was au- verdict, examination Highway Consequently, cross State by increasing a 468, pub- 452, similar federal Bloom, 93 thorized based on other Commission guide- lications, poverty citing which included (1958), S.D.Const. N.W.2d exception VI, 6, well-recognized lines. a art. § verdict where
permits amendment a verdict for instructed IV. judge the trial has before sum, of fact is certain since no issue complain See, Mountjoy, g., Allison jury. e. photo refusing to admit court erred It (Mo.App.1964).1 383 S.W.2d photo and a graphs damaged vehicle given the trial also seem that within that graph of one of decedents plaintiff Gross could to the instruction vehicle. by the verdict increase. prejudice claim court refused these exhibits The trial Gilham, Walters See probative value was basis that their N.W. 855-56 prejudicial ef- outweighed by possible their (Rule 12 -3 403 of South fect. II. Evidence). agree. Rules of *5 Dakota admis Plaintiffs claim as error the Fed excerpts from the sion into evidence of V. copies. Register eral that were not certified testify permitted Defendant was excerpts We believe the were admissible family and his concerning occupation objections under over the foundational to be irrele appear to us background, 902(5) the (Rule 19-17-6 South also was vant to the issues. Defendant Evidence) and find no er- Dakota Rules of not remem to state that he did permitted ruling admitting in the trial ror did he remember happened what nor ber excerpts into evidence. the acci the scene of seeing anything at the effect of may This have had
dent.
admission of
“watering down” defendant’s
III.
not have been allowed.
liability and should
complain
next
Plaintiffs
have been
feel the trial court would
poverty
for
government
guidelines
income
defendant
prevented
in
advised had it
irrelevant
to the issues
better
programs were
that, therefore,
the trial.
testifying
the trial court
at
this case and
by allowing
erred
defendant
to introduce
Nonetheless,
discretion-
we defer to the
examining
purpose
them for the
of cross
ary judgment of the trial court that defend-
plaintiffs’ expert witness.
fact affect
testimony
ant’s
did not in
Mattern,
expert
an
an econo-
ultimate decision. Brewer
Plaintiffs called as
(1970).3
mist,
attempted
“pe-
who
to reconstruct the
misled and placed by burden on them the 22 INSTRUCTION not that the instruction. We do feel court’s you You are that not instructed should received of Michael H. estate any any suf- damages award or an hour of for not more than $500 an award you by sustained a decedent unless L. suffering, estate Alice nor the of of actually as a a find fact that decedent of Mechtenberg, an award which received by or suffered conscious $1,000 five suffer for not more than hours’ personal injuries. reason or prejudiced by the instructions ing, were inadequate. grossly were that such awards 23 INSTRUCTION VIII. that the testi- you If should find medical mony only jury shows that Michael Weber In each the reduced instance funeral for reasonable Mechtenberg might Alice have conscious- the ainount awarded considering upheld appeal, of the We was this Court’s affirmance the amount verdict. 8, Lineback, finding upon 597. that idner v. 82 S.D. 140 N.W.2d 333. in Plank was based 366, ample at at 85 S.D. 182 N.W.2d trial court’s own instruction pro- upon impropriety proper, not Although plaintiffs correctly 4. the tri- note that 185-86, posed 156 N.W.2d instruction. Id. at Heirigs, 156 al court in Plank v. 83 S.D. at 200-01. (1968), give 193 N.W.2d refused an instruc- virtually tion 22 and identical Instruction
190
that
cop-
The trial court concluded
charges
expense from those
included
manifestly
by the funeral
were not such as
submitted
the awards
ies
statements
on a
by
into evidence
actuated
directors and admitted
that
had been
show
if the funeral directors
stipulation
prejudice
corruption.
or
passion, partiality,
they would have testi-
present
were
in court
the verdicts
Although this Court feels
charges contained in the bills
fied
perverseness and
evidence a measure of
and reasonable.
were fair
attitude,
not a standard
conservative
this is
Rahman, 88
reversal. Nelson v.
were
the funeral bills themselves
Because
(1974).5 We defer to
N.W.2d
reasonable, unlike the
stipulated
not
to as
court,
opportunity
trial
an
who had
loss, there was an
Mechtenberg automobile
considering
in addition to
observe
jury.
issue of
to be resolved
fact
verdict,
whose dis
amount of the
in each instance were not sub-
Reductions
appear
to have been
does not
cretion
as would indicate
stantial and not such
Corpora
Chrysler
Motor
abused. Ehlers
prejudice
shock the sensibili-
passion or
nor
tion,
(1975);
88 S.D.
N.W.2d
ties of this Court.
Rahman, supra; Brewer v. Mat
Nelson
IX.
tern, supra.
Finally, we reach the most difficult
n
sufficiency of
reviewing
I
presented-whether
a new trial
questions
awards,
princi
must also consider
granted
inadequacy
should
Lanning
by this Court in
ples announced
verdicts.
Schulte,
and nieces for the loss of the
pursuant
reviewing
In
the awards
sixty
panionship, aid and counsel of their
is in
plaintiffs’ claim that
the evidence
five-year-old sister and aunt.
verdicts, we are
support
sufficient
by the
restricted nor limited
In the Alice D.
death claim
judge whether
unique position awarded
to the three surviv-
prejudice.
passion
verdicts resulted
ing
their
brothers and sister for the loss of
*7
Rather,
enlightened princi
approve
we
seventy-two-year-old
society,
sister’s
com-
Schulte, supra,
Lanning
stated in
ples
panionship, aid and counsel.
review verdicts
and intend to continue to
uncon-
In each instance the evidence was
inadequate
on that basis.
claimed
in rea-
troverted that
the decedents were
only $200
The fact that the
awarded
accident
sonably good
prior
health
to the
rather
counsel, advice,
damage
to the automobile
aid and
for
give
and did in fact
instruct-
which the trial court
companionship
survivors.
than
$635
to the
Nelson,
reviewing
the test for
a claim of
also noted
“[w]hen
5. As the Court observed
inadequacy
argument
considering plaintiff’s
that the dam-
of the verdict:
insufficient,
ages
must
awarded are
court
therefore,
damages,
exces-
The
must be so
that,
the review of an
bear in mind
similar to
mankind,
blush, as
sive as to
at first
strike
excessive,
be-
award claimed
the difference
measure,
being, beyond
all
unreasonable
judge’s
award or a
'verdict
tween the
manifestly
outrageous,
show the
and such as
and what
the members of this court
by passion, par-
jury to have been actuated
allow is not the
of either. Weidner v.
measure’
tiality, prejudice
corruption.
or
Lineback,
Weber. We do not reach the merits of this Accordingly, I dissent. contention, conclude that that issue was not properly raised in the trial court. I state am authorized to that HENDER- judgments The are affirmed. SON, Justice, joins in this dissent.
WOLLMAN, J., DUNN, J., C. concur. FOSHEIM, JJ.,
HENDERSON dis-
sent.
HEEGE, Judge, sitting Circuit for MOR-
GAN, J., disqualified.