Damages are, of course, limited to pecuniary loss sustained by the beneficiary, and are therefore based only on the period during which the beneficiary actually survived decedent. Schneider v. Baisch, 256 N.W.2d 370, 372 (N.D. 1977). While the court allocates the jury's award according to each beneficiary's proportionate pecuniary loss, the fact of a beneficiary's death must be available to the jury so it can determine the "fair and just" loss from decedent's death. See Minn. Stat. ยง 573.02, subd. 1. This circumstance, we note, is an exception to the general rule that evidence of events subsequent to decedent's death is inadmissible on the issue of damages.
[] 32-21-02, N.D.C.C. Thus, the probable contributions of the decedent to a beneficiary are the bases for a beneficiary's recovery.Schneider v. Baisch, 256 N.W.2d 370, 371 (N.D. 1977). N.D.C.C. ยง 32-0.32-04 enumerates compensable damages available in wrongful death and personal injury actions: In any civil action for damages for wrongful death or injury to a person and whether arising out of breach of contract or tort, damages may be awarded by the trier of fact as follows:
Damages under the wrongful death act are "based on the loss suffered by the beneficiaries, and not on the loss sustained by the, decedent's estate." Schneider v. Baisch, 256 N.W.2d 370, 371-72 (N.D. 1977) (limiting recovery "to the beneficiary's actual period of survival" (emphasis added)). A jury determines the quantity of damages and "shall give such damages as it finds proportionate to the injury resulting from the death to the persons entitled to the recovery."
I prefer a new honor to an old disgrace. I reiterate what I said in dissent in Schneider v. Baisch, 256 N.W.2d 370 (N.D. 1977), that there is no reason why we should follow unreasonable decisions from other States, and it is better to make good law than to import bad law. Most of the decisions from other States either cite and rely upon Kamp v. Kamp, 59 N.Y. 212 (1874), or upon other cases which in turn cited and relied upon Kamp. The majority says that it is "persuaded by the reasoning displayed" in Kamp v. Kamp and Bassett v. Bassett, 99 Wis. 344, 74 N.W. 780 (1898), which I will discuss below.