a comment of counsel of the type involved in the instant case.
The decisions on which counsel for the Capital Transit Company rely, Egan v. United States, 52 App.D.C. 384, 396, 287 F. 958, and Billeci v. United States, 87 App.D.C. 274, 278, 184 F.2d 394, 24 A.L.R.2d 881, are not in point and involve a different principle. They relate to the correctness of a judge's charge regarding the absence of an available witness, and not to the right of counsel to comment concerning the matter.
A subject meriting serious consideration is the measure of damages. It is a basic principle that damages in a death case must be measured in the light of the situation existing as of the date of the death, and are not affected by subsequent events, The city of Rome, D.C., 48 F.2d 333, 343. The award of the sum of $ 5,000 to the husband is not excessive, bearing in mind the rule that he was entitled to recover not only for the financial contributions that the wife might have made to the maintenance of the household, since she was a wage earner, but also the reasonable value of her services during their joint life expectancy. The fact that two years later he remarried may not be taken into account, since it is an event subsequent to the death when the right to recover damages vested finally and absolutely, The City of Rome, supra. Similarly, the award of $ 3,000 to the son was not excessive in the light of the evidence that the mother was helping to finance his education. The fact that he abandoned school some time after his mother's death has no significance in this connection, not only because it is an event subsequent to the time when the right to recover damages became vested, but also because his course of action might have been caused by the loss of his mother's guiding hand.
The second count of the complaint seeks to recover, in behalf of the estate, damages sustained by the deceased in her lifetime as the result of the personal injuries suffered in the accident. The District of Columbia statute, enacted about five years ago, governing survival of rights of action is unique and differs in an important respect from other statutes on the subject. It reads as follows:
'On the death of any person in whose favor or against whom a right of action may have accrued for any cause prior to his death, said right of action shall survive in favor of or against the legal representative of the deceased: Provided, however, That in tort actions, the said right of action shall be limited to damages for physical injury except for pain and suffering resulting therefrom.' D.C.Code 1951, Title 12, Sec. 101.
It has been held that under this statute all tort actions survive the death of either the plaintiff or the defendant, and that the phrase 'tort actions' in the proviso should be construed to refer to actions for personal injuries and not to comprehend all tort actions, Soroka v. Beloff, D.C., 93 F.Supp. 642. It will be observed that the proviso precludes recovery for pain and suffering in an action to recover damages for personal injuries in case the plaintiff dies during the pendency of the suit. This limitation is peculiar to the District of Columbia. It has been construed to exclude any award for pain and suffering under such circumstances. It is still possible to recover for pecuniary losses such as hospital, medical, and similar expenses, as well as other disbursements and money losses incurred during the life of the deceased and caused by the defendant's negligence, Phillips v. Lust, D.C., 82 F.Supp. 63. Whether there can be any allowance for the disability itself, as distinguished from pain and suffering caused thereby, in case of a protracted illness is a question not presented here for decision. In this case the deceased lived less than an hour after the accident. No pecuniary damages were sustained. Since pain and suffering must be excluded in determining the amount of damages, the conclusion inescapably follows that only nominal damages may be recovered on the second count. Thus, in Great Northern Ry. Co. v. Capital Trust Co., 242 U.S. 144, 37 S. Ct. 41, 61 L. Ed. 208, it was held that as the deceased died from his injuries without living an appreciable length of time, no basis was afforded for an estimate of an award of damages.
In the instant case the jury awarded the sum of $ 300 as damages sustained by the deceased in her lifetime. Since the Court is of the opinion that no more than nominal damages may be awarded in respect to this aspect of the action, this amount should be reduced to $ 1, and to that extent the verdict is excessive.
Motion for judgment notwithstanding the verdict is denied. Motion for a new trial is granted unless the plaintiff stipulates to a reduction of the amount of damages from $ 8,300 to $ 8,001.
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