62 Cal. 320, 8,482, Nehrbas v. Central P. R. Co.

Docket Nº:8,482
Citation:62 Cal. 320
Opinion Judge:ROSS, Judge
Party Name:H. F. NEHRBAS v. THE CENTRAL PACIFIC RAILROAD COMPANY
Attorney:Henry Vrooman and W. H. L. Barnes, for Appellant. W. W. Foote and A. A. Moore, for Respondent.
Judge Panel:JUDGES: Ross, J. McKinstry and Sharpstein, JJ., and Morrison, C. J. concurred.
Case Date:December 12, 1882
Court:Supreme Court of California
 
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Page 320

62 Cal. 320

H. F. NEHRBAS

v.

THE CENTRAL PACIFIC RAILROAD COMPANY

No. 8,482

Supreme Court of California

December 12, 1882

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Appeal by defendant from the judgment of the Superior Court of the County of Alameda. Greene, J.

COUNSEL

Henry Vrooman and W. H. L. Barnes, for Appellant.

The damages were excessive and contrary to law. (Sedg-wick on Measure of Damages, vol. ii., p. 537.) The author says: " Where there is a prospective pecuniary loss, resulting from the death, damages may be recovered in compensation for such loss. It may be difficult, from the nature of the case, to lay down more than a general rule to govern the jury in their award of prospective damages. There should be, at least, a reasonable expectation ofpecuniary benefit from the life of the deceased to entitle the plaintiff to recover.

" Definite instructions should be given to the jury as to the true measure of damages under the statute, although much must be left, it is said, to their sound discretion. The rule on the proper measure of damages in this class of cases is nowhere better stated than by Sharswood, J., in Penn. R. R. Co. v. Butler , 57 Pa. St. 335, where the learned Judge says: 'After an attentive examination and review of all the cases which have heretofore been decided, we are of opinion that the proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered (in this instance the children of the deceased), without any solatium for distress of mind, and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability, and disposition to labor, and his habits of living and expenditure.'

" As to the future services of minors, damages under this statute may alsobe recovered for the pecuniary loss, present or prospective, resulting from the death of minors. But it should be made to appear to the jury that there is, at least, a reasonable expectation that the services of the child will be of pecuniary value to the plaintiff."

In Oldfield v. The N.Y. & H. R. R. Co. , 14 N.Y. 310, this language was used by Judge Wright: " Since the jury must be satisfied by proof of the probability of actual loss resulting to the plaintiff from the death of the minor, the condition of the parents, the occupation of the father, etc., are admissible in evidence in this class of cases, when not in others, under the statute, to enable the jury to determine the actual loss which will, in all probability, result from the death of a child." (Citing Ewen v. Chicago & N.W. R. Co. , 38 Wis. 613; Barley v. Chicago & Alton R. R., 4 Biss. 430; Chicago v. Powers , 42 Ill. 169.)

" But the damages must be limited to the minority of the child. It is the pecuniary value of the services of the boy during his minority that can be recovered." (Citing Caldwell v. Brown , 53 Pa. St. 453; State of Maryland v. B. & O. R. R. Co. ,24 Md. 84; Penn. R. R. Co. v. Kelly , 31 Pa. St. 372; Penn. R. R. Co. v. Zebe , 33 Pa. St. 318; Telfer, Adm'r, v. N. R. R. Co. , 30 N. J. L. 188.)

" The expense of providing for the child, had he lived, should be estimated and deducted from the estimated earnings of the child. Says Van Dyke, J., in the case last above cited: " The action is the creation of the statute." In the same action the Court says the common law gives no action to a father sustaining such an injury. It is given by the statute. The language of the Act upon the subject of the damages is: " The jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting to the wife and next of kin of such deceased person." " It is liable to great abuse, and the Court should see that every verdict which is rendered contrary to it should be set aside. It is simply an action to recover, in dollars and cents, a compensation for the loss and damages which have actually been sustained." In this case there were two boys, one thirteen and one seventeen years of age, who were driving in a wagon; got on a crossing, were struck by a passing locomotive, and instantly killed.

" Asthe father of his children, the plaintiff was entitled to their services until they should arrive at the age of twenty-one years; and what those services might reasonably have been expected to be worth, he was entitled to recover, and nothing more, unless it be expenses growing out of the injuries, subject to the burdens and incumbrances which that relationship imposed upon him. Where, however, as in Iowa the statute provides that the action shall be in favor of the 'estate of the deceased,' it is held that the damages are not limited by the minority of the child."

In Potter, Adm. etc., v. The Chicago & N.W. R. R. Co. , 21 Wis. 377, it is said: " The weight of authority is that the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of the life beyond the minority. But this does not seem to be correct. As was said in Bannon v. B. & O. R. R. Co. , 24 Md. 117: 'the chances of survivorship, his ability and willingness to support others, are matters too vague to enter into an estimate of damages merely compensatory."

In Telfer v. The Northern R. R. Co., the Court further says: " It is insisted also that the damagesin these cases are excessive." [I will remark here that these actions were brought, as probably they strictly should have been brought, separately for each one, and were, by stipulation, consolidated and tried together. In this case, by agreement, the cases of all the children were tried in one action, and we make no point, exception, or objection to what would otherwise be an improper joinder of several causes of action.] " In the case of David, they are assessed at nine hundred and thirty-six dollars; and in the case of William at one thousand and fifty-six dollars. In the view which I have taken of the cases, it is not necessary to examine this part of them; but the question presented is one of importance, and deserves the consideration of the Court, either now or at some other time. The jury seem to have been left pretty much to their own conclusions in the matter, as there was but little if any evidence to throw light on the subject beyond the fact of the relationship between the father and his children; and it may be doubted if they could have reached the conclusions which they did, if they had been governed by correct legal principles.

" The action is the creation of thestatute; and it is need-less to say that it must conform strictly to it. It is liable to great abuse; and the Court should see that every verdict which is rendered contrary to it, should be set aside. It is simply an action to recover in dollars and cents, a compensation for the loss and damages which have actually been sustained. As the father of his children, the plaintiff was entitled to their services until they should arrive at the age of twenty-one years; and what those services might reasonably have been expected to be worth, he was entitled to recover, and nothing more, unless it be expenses growing out of the injuries, subject to the burdens and incumbrances which that relationship imposed upon him. Nothing can be allowed for the mental anguish which, as a parent, he is supposed to have suffered. Nothing for the satisfaction and comfort of having his sons--nothing for the loss of their society and associations.

" The damages in the case of William are fixed at one thousand and fifty-six dollars. He was over thirteen years of age, and had something over seven years to serve his father. There is an allowance, then, of about one hundred and fifty dollars per year on anaverage.. This is about what the services of a full-grown man would be worth in the business in which the plaintiff was engaged, when boarded, provided he should work faithfully the whole of that time. If this is the...

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