Summary
In Miner v. McKay, 145 Conn. 622, 624, 145 A.2d 758, this court upheld a verdict for the death of a nine-year-old girl partly on the ground that she "gave promise of an adult life of at least average expectancy and rich in activities."
Summary of this case from Waldron v. RaccioOpinion
The death of the plaintiff's decedent in an automobile accident was instantaneous. She was a nine-year-old girl who gave promise of an adult life of at least average expectancy and rich in activities. The jury were given every possible factual assistance in evaluating this young life under our rule. So far as appeared, nothing occurred during the trial to arouse prejudice or bias against the defendants. Upon all the evidence as to damages, held that the trial court's refusal to set aside the $36,000 verdict as excessive could not be disturbed.
Argued October 10, 1958
Decided October 28, 1958
Action to recover damages for the death of the plaintiff's decedent, alleged to have been caused by the negligence of the defendants, brought to the Superior Court in Hartford County and tried to they jury before Phillips, J.; verdict and judgment for the plaintiff and appeal by the defendants. No error.
Robert Y. Pelgrift, with whom, on the brief, was DeLancey Pelgrift, for the appellants (defendants).
William P. Aspell, with whom, on the brief, were George Muir and Mary C. Fitzgerald, for the appellee (plaintiff).
This was an action claiming damages for the wrongful death of the plaintiff's decedent, caused by the negligent operation of a motor vehicle owned by the named defendant and operated by his son, the defendant Burton W. McKay. Liability upon the part of both defendants was admitted, and the sole issue presented to the jury was the amount of damages to be awarded. Death was instantaneous and therefore no ante-mortem elements of damage were present. The only item of special damage was a funeral bill of $456. The jury returned a verdict of $36,000, which the court refused to set aside as excessive. Since there were no requests to charge or exceptions to the charge as given, the charge is presumed to have been correct. Mercier v. Naugatuck Fuel Co., 139 Conn. 521, 528, 95 A.2d 263.
We have recently had occasion to review our rule of damages in wrongful death actions. Floyd v. Fruit Industries, Inc., 144 Conn. 659, 669, 136 A.2d 918. It is difficult, in the case of a young child with this long actuarial expectancy, to forecast the scope of the activities which, but for death, she would have carried on and enjoyed through a lifetime. The evidence, however, fully warranted the following statement of the trial court, in its memorandum of decision refusing to set aside the verdict: "The decedent was a girl nine years old, with an [actuarial] life expectancy of 65.25 years. The jury could have found from the testimony that she was a sweet child, courteous and attentive; that she had many friends [and] was well behaved; that she was active in the junior choir every Sunday [and] was in the top bracket of her class in scholarship, having marks of A and B; that socially she got along well; that she was a terrific worker and wanted extra work; [that she] was interested in the junior Girl Scouts [and] had excellent ability as a dancer; [and that she] was interested in music. Her father [had] worked for eighteen years for Pratt Whitney and owned a six-room Cape Cod house. The jury could infer that she had good home surroundings." The scope of her activities also warranted an inference by the jury that her health and actual life expectancy were at least normal.
It is obvious that the decedent, from about every standpoint, gave promise of an adult life of at least average expectancy and rich in activities. The burden of proof on the issue of damages is on the plaintiff, and it appears that the jury were given almost every possible factual assistance in the task of evaluating this young life under our rule. Nothing appears to have occurred during the trial to inflame the jury or arouse prejudice or bias against the defendants.
Where, as here, the sole attack on the verdict is that it was excessive, the refusal of the trial court to set it aside is entitled to great weight. McWilliams v. American Fidelity Co., 140 Conn. 572, 575, 102 A.2d 345. The memorandum of decision, citing McKirdy v. Cascio, 142 Conn. 80, 86, 111 A.2d 555, makes it clear that the court was correctly applying our test as to the permissible range of an award of damages for the death of a young child, such as this decedent, with most of life before her. While the wording we have employed in explaining this test has varied, the test itself has remained unchanged, and perhaps has never been better outlined than on pages 84 to 86 of the opinion in the Cascio case, supra.