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February 25, 1952


The opinion of the court was delivered by: HOLTZOFF

This is a motion by the defendant for a new trial in an action to recover damages for the wrongful death of a child three days old. The jury returned a verdict for the plaintiff for $ 17,000.

The child's mother was taken to the defendant, National Homeopathic Hospital, shortly before his birth. In the last stages of labor, she was moved to the delivery room and placed on a delivery table. When the child was born, he fell through an opening in the middle of the table and hit a pan or bucket standing on the floor. The baby sustained a cut on his forehead and died three days later.

 The foregoing facts are admitted. The defendant, however, denied the charge of negligence leveled against it, and further disputed that the child's death was caused by the fall. On the issue of negligence, the evidence was uncontroverted that the hole in the delivery table was intended for drainage; that before birth takes place, it is customary to fill the hole with rubber padding to prevent such accidents as occurred in this instance, and to leave a very small opening for drainage; and that on this occasion for some unexplained reason the hole was not padded. The inference of negligence drawn by the jury was fully sustained by the evidence. In fact any other conclusion would have been unreasonable.

 On the issue of cause of death, a brain surgeon, who examined the child's brain after his death, expressed the opinion that death was due to a blow on the head sustained at the time of birth. A physician called by the defendant testified that death resulted from a failure of respiratory organs, and when further interrogated stated that in his opinion it was conjectural whether the blow on the head was instrumental in bringing about the child's death. Again, the jury's inference that the fall and the consequent blow on the head at the time of the child's birth were a cause of death, was fully sustained by the evidence.

 The only point on the defendant's motion for a new trial that deserves serious consideration is the amount of damages awarded by the jury. The defendant contends that in case of a child of tender age only nominal damages should be allowed, in addition to the medical and funeral expenses incurred by the parents, which in this case amounted to about $ 131.

 The objective of the statutes that created a cause of action for death caused by the negligent act of another was to fill a serious gap or omission in the common law. Their objective was to ameliorate the harsh rule that denied any recovery if the injured person died, while permitting an award of damages if he lived. Such statutes must be construed and applied in the liberal spirit contemplated by their framers and with a view to effectuating their purpose. This principle was enunciated by Mr. Justice Cardozo in VanBeeck v. Sabine Towing Co., 300 U.S. 342, 350-351, 57 S. Ct. 452, 456, 81 L. Ed. 685, in the following felicitous manner: 'Death statutes have their roots in dissatisfaction with the archaisms of the law * * * . It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied.'

 Ordinarily such statutes limit the damages to the pecuniary loss sustained by the family of the deceased. No compensation is permitted for grief, mental anguish, or sentimental loss. Probably the purpose of this restriction is to confine the amount of damages within reasonable bounds and to prevent improvident and extravagant awards. On the other hand, this limitation must not be used to defeat the humanitarian objective of the statutes and to limit recovery to nominal damages. The pecuniary loss resulting from the death of a member of the family cannot be ascertained with precision or computed with accuracy. True, in the case of an adult, the income of the deceased and his earning capacity form a partial basis for a conclusion. Even in such a situation, however, an element of chance and conjecture enters into the determination, because if the deceased had not lost his life as a result of the defendant's negligence, he might have died shortly thereafter in another accident or from some natural cause. For this reason mortality tables furnish some guide even though they are based entirely on averages.

 In the case of an infant who has not as yet developed any earning capacity, there is a greater play for discretion on the part of the jury. This circumstance, however, constitutes no reason for not awarding substantial damages for the death of a small child. Otherwise, the purpose of the statute would be frustrated to that extent and a person who negligently caused the death of an infant would be free of all liability. Such a result would be abhorrent and unjust. It would 'keep the word of promise to our ear, and break it to our hope'.

 The law does not differentiate between the death of an adult and the death of an infant. Consequently, the general rule is that substantial damages should be awarded in any death case in which the plaintiff prevails, irrespective of the age of the deceased. Mortality tables showing the life expectancy of the parents may aid in the ascertainment of damages. *fn1" The earnings of the child during his minority belong to his father. So too, the possibility that the child may make contributions to the support of his parents even after he reaches majority may be taken into account. As against these factors, consideration must be given to the cost of bringing up the child.

 This method of ascertaining damages is, no doubt, artificial and unrealistic, but it is a rule that the law has formulated in order to afford a substantial recovery without allowing license for extravagant verdicts for grief and injury to feelings. Naturally, much must be left to the wise discretion and sound judgment of the jury, since the amount of damages is not subject to mathematical calculation. This is true, however, in most tort cases.

 This doctrine is sustained by the weight of authority. It is also the rule in the District of Columbia. In United States Electric Lighting Co. v. Sullivan, 22 App.D.C. 115, 136, in discussing death statutes, the Court stated: 'In numerous * * * cases that might be cited, the * * * liberal rule for the ascertainment of damages to next of kin has been followed as necessary to give any practical effect to the remedial purpose of such legislation. In many of these, where the deceased was an infant (sometimes of tender years), the recovery has not only been permitted to include probable pecuniary injury, founded on a legal claim to the deceased infant's services during minority, but also that which might be fairly estimated with reference to the reasonable expectation of the continuance, to some extent, of those services after majority, founded on conditions of age, feeble health, and poverty reasonably sufficient to create a strong moral obligation on the part of the child.'

 In Smith v. Cissel, 22 App.D.C. 318, which involved the death of a child eight years old, the Court in an opinion written by Chief Justice Alvey sustained the right of the administrator, 'to recover more than mere nominal damages'.

 This doctrine was followed in Globe Furniture Co. v. Gately, 51 App.D.C. 367, 279 F. 1005.

 In Earl W. Baker & Co. v. Lagaly, 10 Cir., 144 F.2d 344, 347, 154 A.L.R. 1098, the Court said, in affirming a judgment for $ 5,000 for the death of a six-year old child: 'The amount of damages properly recoverable in a case of this kind is incapable of exact mathematical demonstration. It is a matter of reasonable ...

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