10 N.W.2d 767 | S.D. | 1943
[1, 2] This case was before the court on a prior occasion wherein it was held that the attempted appeal by the defendant Sioux Transit Company from the judgment absolving the defendant Ted Tufty from the liability should be dismissed. Tufty v. Sioux Transit Company,
[3-5] This action is of necessity brought under and sustained by our statutes relating to death by wrongful *371
act. SDC 37.22. We say "of necessity brought under" for the reason that it is only by virtue of these statutes that a cause of action exists. Ulvig v. McKennan Hospital,
[6] The trial court instructed the jury by its instruction No. 20 that should a verdict be found for the plaintiff "* * * it should embrace all the probable or even possible benefits which might accrue from this life, * * *". After a considerable search of the cases, we find no support for including the possible benefits which might accrue, except the quotation from the New York case of Morris v. Street Railway Co.,
The reasonable expectation of benefits is, we believe, the rule established in this state. In the case of Smith v. Presentation Academy of Aberdeen, supra, [
In the case of Stratton v. Sioux Falls Traction System,
It might be that under the rule announced in the case of Tobin v. Bruce et al.,
[7, 8] As stated above, the jury returned a verdict for $6,000. That this verdict is large is apparent, when considered in the light of the fact that our statute permits neither punitive damages, damages for the pain or suffering of the child nor damages to the parents for their grief or the loss of the companionship and society of the child. Janis was a bright, normal girl. That she was dear to the heart of her parents is without question. However, there is nothing to indicate that the value of her services before majority, or the amount she might contribute to her parents thereafter would have been greater than that of the ordinary girl of her age. For many years she would have been an expense to her parents. The financial condition of the parents is not shown by the record, but assuming that these parents are in average financial circumstances, we believe, that a verdict of $6,000 is, at the least, a large estimate of the amount they might reasonably have expected in the way of pecuniary aid from Janis. We do not hold that the verdict is excessive. We are of the opinion, however, that had this jury been cautioned against including in its verdict any amount for the grief of the parents and their loss of the companionship of the child, and had the court limited the verdict to the amount these parents might have reasonably expected to receive from the girl, a different and smaller verdict might have resulted. Especially is this true in the light of this record. The death of the little girl itself would *374 very naturally create a sympathy for the parents, and while there was no dispute of the fact that Janis was a normal and bright girl for her age, there was introduced in evidence four different pictures of the girl all taken under conditions and poses which when considered in the light of her tragic death would naturally arouse the sentiment and sympathy of the jury. The health and physical condition of Janis was a material element to be considered by the jury in fixing the amount of recovery, and for this reason a picture or pictures of the girl should not be excluded merely because the jury might be improperly influenced thereby. The number of the pictures admitted must be left to the sound judicial discretion of the trial court, but where, as here, the court admitted four pictures, when there was no dispute concerning the health or physical condition of the child, and where each picture was such that it would appeal to the feeling of the jury, strong reason appears for the cautionary instruction requested by appellant.
[9] In its instructions on negligence the court referred to "a careful and prudent person." The appellant contends that such reference should have been to "an ordinarily careful and prudent person." We are of the opinion that the reference should have included the word "ordinarily."
The judgment appealed from is reversed.
All the Judges concur.