*1 SCHNEIDER, Represent as Personal John Margaret P. the Estate of
ative Individually,
Schneider, Schneider, John Schneider, Plaintiffs-Appel
and Colleen
lees, BAISCH, Defendant-Appellant. A.
Ewald Bucklin, Zuger Bismarck, & for defend- 9328. Civ. No. argued ant-appellant; by Leonard H. Buck- Dakota. Court of North Supreme lin, Bismarck. 28, 1977. July Nodland, Lundberg, Conmy, Rosenberg, Schulz, Bismarck, plaintiffs-ap-
Lucas & argued by Lucas, A. William Bis- pellees; marck.
PAULSON, Justice. appeal from the This Burleigh County court of the district dated defendant, 23, 1976. The Ewald December Baisch, asserting that the trial appeals, A. computation erred in its court Schneider, John plaintiffs, behalf, personal repre- own and as on his Margaret of the Estate of P. sentative mother; Schneider, his deceased and Col- leen Schneider. appeal: issue is raised on
Only one
beneficiary’s recovery
for death
whether
act is limited to the
beneficiary’s actual survival lifetime if
such
trial;
lifetime is known at the time of
such
recovery may
or whether
be allowed for the
such
actuarial
period of
the time of the
expectancy at
decedent’s
death, ignoring
actual sur-
question
is one of first
vival lifetimе.
jurisdiction.
in this
impression
case
The instant
arose from an automo-
2,1975,
May
bile accident
occurred on
involving
vehicles driven
Baisch and
Schneider,
Henry H.
the decedent herein.
Henry
was survived
his wife
Schneider
Schneider,
Margaret
P.
and two
children,
Schneider,
John and Colleen
adult
ages
Margaret
22 and 19 respeсtively.
*2
29,1976,
of cancer on March
died
But
Schneider
counsel for the defendant
questions
whether
nearly
recovery
eleven months after
accident
can be had on
Margaret
of
behalf
Schneider
killed,
period
for a
prior
was
which her husband
longer
period
than the
of her survival. I
action. Her illness
trial оf the instant
can,
that she
conclude
irrespective of her
a few months
originally diagnosed
had been
early
for the reason that her cause
husband’s death.
to her
prior
of action arose immediately upon the
brought by John
This action was
Schneid-
of her
husband.”
er,
personal repre-
his own behalf and аs
on
The trial court went on to state:
Margaret
the Estate of
P.
of
sentative
addition,
“.
.
.
In
were courts to
32-21-05,
Schneider, pursuant
N.D.
§
happenings
consider
C.C.,
by
Schneider. At the trial
Colleen
wrongful death in arriving
awards,
at
it
action,
liability pur-
this
Baisch admitted
place conjecture
would
upon and limit
stipulation
to contrаctual
that
suant
recovery in all
kind,
cases of this
as well
damages
would not seek
in ex-
Schneiders
many
as in
other cases wherein recovery
$50,000.00. Following
the trial on
cess
sought
was
based upon negligence.”
damages, the trial court
the issue of
award-
Finally, the trial court stated:
damages
in the amount
ed
Schnеiders
if the
“Even
Court were to assume the
$50,000.00 awarding the
estate of Mar-
—
posture,
more conservative
some evidence
$41,666.67;
garet P.
the sum of
Schneider
have had to
would
have been offered
$9,600.00,
the sum of
Colleen Schneider
re-
indicating a life expectancy
spouse
$8,333.33by
stipulat-
duced to
reason оf the
to be shorter
that of the calculated
limit;
judgment
any
ed
did
award
life
of the decedent. Lacking
damages to John Schneider.
evidence, it
this
must be assumed that
appeal
It is Baisch’s contention on
would
that
Mrs. Schneider
have
at
lived
least
long
as her husband would
findings
the trial court’s
as to
have lived
he not suffered wrongful
had
by the estate
death.
Margaret
incurred
Schneid-
true,
being
it not necessary
This
for the
by
were induced
er
erroneous view of
any
to calculate with
certainty
Court
awarding damages upon
law
normal
which Mrs.
amount
Schneider would have
of a woman 56
of age
Henry
received had
Schneider lived out
uрon Margaret
and not
Schneider’s actual
expectancy,
his life
since the amount
lifetime,
e.,
i.
eleven months.
survival
she would have
received is far in
findings
This court will not disturb
made
$35,000yet
excess of the
to be dealt in.”
they
a trial court unless
are
by
clearly
nothing
We find
in the trial court’s findings
erroneous,
either
a clear demonstra
fact,
law,
conclusions of
and order for
they are without substantial evi-
tion that
indicate,
that would
as counsel
dentiary support
they
or that
are induced
urges,
for the Schneiders
the trial
erroneous view of the law. Rule
by an
court abandoned this view of the law or
N.D.R.Civ.P.;
“L”
52(a),
Stee v. Monte In
part
no
played
that it
in the trial court’s
dustries,
Inc.,
(N.D.
247 N.W.2d
findings
on
incurred
Fine,
1976);
N.W.2d
Fine
Schneiders.
(N.D.1976).
Dakota’s death
North
case, it is evident that the
In the instant
32-21,
law, Chapter
N.D.C.C.,
act
awards
recovery
on
court allowed
trial
damages to a restricted class of beneficiar
Margaret
of the estate
Schneider
behalf
ies, based on the loss suffered by the benefi
longer than the time of her
period
for a
ciaries, and not on the
loss sustained
survival,
though
even
the trial court
actual
32-21-02,
estate.
decedent’s
N.D.C.C.
legal
bases for its
to include
failed
Thus,
probable
contributions of the de
damages in its conclusions of
findings of
a beneficiary
cedent to
are the bases for a
court, in
its memorandum beneficiary’s
law. The
recovery. Although under
statutory structure,
opinion stated:
such a
the life expect-
VOGEL, Justice,
the benefi-
dissenting.
the decedent and
of both
ancy
factors,
relevant
ciary are
I dissent.
award based on
recovery is limited to an
majority opinion
that the
holds
dam-
the shorter of the
expectancy of
the life
to a
ages
wrongful-death
due
survivor in a
expect-
decedent’s
will be
action
limited to the
sur-
no
to the benefi-
contribution
ancy, because
*3
vival, provided the survivor dies before the
presumed beyond the actuarial
ciary can be
tried.
wrоngful-death action is
of either the decedent
beneficiary.
the
by
weight
rule is
the
of
supported
The
authority in
There
other States.
are no
special
when
A
issue arises
the
point
in
cases
in this State.
rule is
prior
dies
of
beneficiary
to the trial
the
principle
application.
in
in
wrong
and unfair
by wrongful
for death
act and the
action
of
are
per-
Decisions
other courts
often
beneficiary’s
representative of the
es
legal
suasive,
If
binding
but are not
on us.
those
of
brings the action for the benefit
the
tate
unreasonable,
are
we
decisions
should not
beneficiary’s
pursuant
32-21-05,
estate
to §
good
It
make
thеm.
is better to
law
follow
instance, the
In such an
element
N.D.C.C.
import
to
law.
bad
joint
regarding the
life ex
speculation
of
the
the
of
decedent and
benefi
pectancies
from other
deserve re-
Decisions
States
damages may
is removed
ciary
be
consideration,
rely
to
on them
spectful
but
on
period by
based
the
which the
to
much is
abandon our function of
too
beneficiary actually
the
survived
decedent.
particular,
the law of
In
fixing
this State.
cases, annotations,
of
perusal
our
the
From
integrate
adopt
must
rules we
in new
we
addressing
question
treatises
before
body of
factual situations to the
law we
court, we
that under
conclude
our
this
already have.
wrongful
law,
by
act
death
analysis
Wigmore’s classic
of the
Dean
recovery
is limited to the
actu
given
jurisdic-
weight to be
law of other
to
of survival under such circum
al
valid
when it
today
tions is as
as
was first
Adams v.
196
Sparado,
S.E.2d 647
stances.
written:
(W.Va.1973); Wakefield
Government
(Lа.
Co.,
667
supposed
Insurance
253 So.2d
.
.
Employees
main
virtue of
denied,
blessing
writ
260 La.
‘stare decisis’ is the
of
App.1971),
certainty
(1972); Annot.,
blessing
indicates ancy justify
trial court. There was no evidence that her or that her expect-
cancer was terminal GREENBERG, Jr., Plaintiff, Arthur that of other ancy was less than women of *5 age. the same v. judge, trying this case with- AWES, Richard Defendant right jury, duty out a had the and the Appellant, jury might all the factors which a consider According consider. to our Pattern Paul, corpora Land Bank Federal of St. a Instructions, those factors included the tion, Management, Inc., Credit also state of health mother at the time of known as Credit Bureau of Greater They
the husband’s death. did not include Forks, corporation, Harry Grand Ho any events to the husband’s len, Rent-or-Buy, Inc., corporation, death. Services, Hospital Inc., corporation, subsequent events have no bеaring Such Dakota, political State of North subdi computation damages, vision, persons and all unknown who specific are to be determined as of a date. have, have, any or claim to interest in the case, specific In this date is the date of property proceedings, described in these death of decedent-husband. The subse Defendants, quent death of the mother is of no more relevancy many another future event. certainly no more It is relevant than the Awes, persons M. Joan one of the unknown
prospective marriage or actual future of a claiming property an interest de survivor, and courts almost unanimously proceeding, scribed in above Defend prospective that the actual or marriage hold Appellee. ant and kept is properly jury. of a survivor from a Civ. No. 9311. 4; Annot., 257, Cherrigan 87 A.L.R.2d v. Francisco, City County San Cal. Supreme Court of North Dakota. Cal.Rptr. (1968); Bunda App.2d July 1977. Hardwick, 640,138 Mich. N.W.2d 305 ; (1966)1 Hightower Pepper Bottling v. Dr. Shreveport, (La.App. Co. of So.2d
1960). case, Michigan remarriage eight days
1. In the occurred judgment. after