De Amado v. Friedman

• Decision Date: 22 March 1907
• Docket Number: Civil 967
• Citation: 11 Ariz. 56,89 P. 588
• Parties: ISMAEL T. DE AMADO, Defendant and Appellant, v. B. FRIEDMAN, Plaintiff and Appellee
• Court: Arizona Supreme Court

89 P. 588

11 Ariz. 56

ISMAEL T. DE AMADO, Defendant and Appellant, v. B. FRIEDMAN, Plaintiff and Appellee

Civil No. 967

Supreme Court of Arizona

March 22, 1907

APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Affirmed.

The necessary facts are stated in the opinion.

Kingan & Wright, for Appellant.

Paragraph 2764, Revised Statutes of 1901, creates a new cause of action, which was not cognizable at common law. Southern Pac. Co. v. Wilson, 10 Ariz. 162, 85 P. 401. Under the statute, a father has no cause of action for the wrongful death of his child. A cause of action for the wrongful death of a child is created by statute, and the father is allowed to maintain it, but it is for the estate of the child. The father should maintain the suit as father, and in a representative capacity for the estate. The father has not been damaged under the law, and therefore he cannot set up any damages which accrued to him. Only the child's estate has been damaged, and the father should have alleged some damage to the estate, instead of damage to himself. Southern Pac. Co. v. Wilson, 10 Ariz. 162, 85 P 401. Under similar statutes to ours, it has been held that the father cannot maintain the action in his own right for injuries done to himself by the loss of his child, but can only maintain it as the representative of his child's right. Gann v. Worman, 69 Ind. 462. We believe it to be the true rule of pleading that one who sues in a representative capacity must allege such capacity, and bring the action in that right. Buck v. Fischer, 2 Colo 182; Beal v. Batte, 31 Tex. 372.

"A petition should state the plaintiff's cause of action by distinct averments, and not leave it to the court to deduce the existence of one fact from the statement of another" (Malone v. Craig, 22 Tex. 609), under a provision similar to our paragraph 1277, Revised Statutes of 1901 providing that "the pleadings shall consist of a concise statement of the facts constituting the cause of action." The rule is stated in 4 Encyclopedia of Pleading and Practice, pages 605 and 606, as follows: "In a complaint, the necessary facts to constitute a cause of action must be stated in unequivocal language and not left to inference." It is not sufficient that some facts are stated from which others may be reasonably inferred which would make out a cause of action. Scott v. Robards, 67 Mo. 289; Seligson v. Hobby, 51 Tex. 147; Crump v. Mims, 64 N.C. 767; Rogers v. City of Milwaukee, 13 Wis. 610. We further insist that one suing in a representative capacity must directly and positively so allege, and not leave it to be inferred or presumed. This is likewise true as to the allegation of damages. Damages to an estate should not be inferred from an allegation of damages to an individual. "The parties to a suit must be set out in the declaration with certainty and accuracy, and the capacity in which they sue should be stated." 5 Am. & Eng. Ency. of Law, 1st ed., 353; Watkins v. McDonald, 3 Ark. 266; Engles v. Day, 3 Ark. 273; Cole v. Peniwell, 5 Black. (Ind.) 175; Herf & Co. v. Shulze, 10 Ohio 263. The suit should be for damages to the estate of deceased. Belding v. Black Hills etc. Co., 3 S.D. 369, 53 N.W. 750.

A. Orfila, and Worsley & Van Dyke, for Appellee.

The objection that the plaintiff has no legal capacity to sue cannot be raised under a demurrer assigning for ground that the complaint does not state sufficient facts to constitute a cause of action. 6 Ency. of Pl. & Pr. 323, citing numerous cases; and see Mora v. Le Roy, 58 Cal. 8; Bliss on Code Pleading, sec. 408a. Appellant asserts that a complaint is insufficient if it fails to allege that the estate has been damaged. It is not necessary to allege this, for the reason that when you allege facts which would have authorized the deceased, if his injuries had not been fatal, to maintain an action for damages, you have alleged facts from which the law presumes damages. See, generally, Korrady v. Lake Shore M.S. Ry. Co., 131 Ind. 261, 29 N.E. 1069; Salem Bedford Stone Co. v. Hobbs, 11 Ind.App. 27, 38 N.E. 538; Kenney v. New York etc. R.R. Co., 49 Hun, 535, 2 N.Y.S. 512.

It is well settled that an infant of tender years is deemed in law not possessed of sufficient discretion to make it guilty of negligence for its failure to exercise due care for its own safety. City of Evansville v. Sunheim, 151 Ind. 42, 68 Am. St. Rep. 218, 47 N.E. 634, 51 N.E. 88, 41 L.R.A. 728; City of Chicago v. Hesing, 83 Ill. 204, 25 Am. Rep. 378; Chicago etc. R.R. Co. v. Becker, 84 Ill. 483; Wymore v. Mahaska County, 78 Iowa 396, 16 Am. St. Rep. 449, 43 N.W. 264, 6 L.R.A. 548; Shearman & Redfield on Negligence, 3d ed., p. 48, and note 1; 1 Bishop on Noncontract Law, sec. 586.

OPINION

NAVE, J.

-- B. Friedman, the appellee, was the tenant of Ismael T. De Amado, the appellant. Upon Friedman's child, aged four years and four months, an adobe wall in the leased premises fell and instantly killed him. Friedman sued Mrs. De Amado for damages in the sum of $4,800, alleging that the falling of the wall was due to the negligence of the defendant. From a judgment upon a verdict for the full amount sued for, the defendant has appealed.

1. The first assignment of error is based upon the contention that the complaint does not state facts sufficient to constitute a cause of action. It is alleged in the complaint that plaintiff and his wife are father and mother of the deceased; that plaintiff, on a certain day, was defendant's tenant of the premises in question then owned by defendant; that the defendant wrongfully and negligently kept and maintained, and suffered to remain upon the premises, a certain adobe wall exposed and in a dangerous condition; that defendant knowingly maintained said adobe wall with utter disregard for persons living and doing business in and upon said premises, and knowingly and willfully suffered said wall to remain in said dangerous condition after being notified of the said dangerous condition of the said adobe wall; that without fault or negligence on the part of the decedent or the plaintiff the said wall fell upon and instantly killed the decedent; that by reason of the premises, and by virtue of paragraph 2764, Revised Statutes, a cause of action has arisen in favor of plaintiff against defendant for damages for the death of the said child; that said damages are $4,800. It is contended that this complaint must be construed as an attempted action for damages, accruing personally to the plaintiff by reason of the loss of his son, an action not maintainable either at common law or in Arizona, by statute; that it is not alleged that plaintiff sues in a representative capacity. The statute which creates an action for damages resultant from death caused by the tort of another provides (paragraph 2765, Revised Statutes of 1901): "Every such action shall be brought by and in the name of the personal representative of such deceased person; and, provided, that the father, . . . may maintain the action for the death of a child; . . . and the amount recovered in every such action shall be distributed to the parties and in the proportions provided by law in relation to the distribution of personal estate left by persons dying intestate." We have already held that such action is for the benefit of the estate of the decedent. Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 P. 401. By virtue of the proviso in the paragraph quoted, this action stands precisely upon the same footing as if it had been brought by the administrator of the deceased infant. Should A B institute such an action, stating that he is the administrator of the decedent, setting forth his tortious death, and alleging that by reason of the premises a cause of action has arisen in favor of the plaintiff for damages, the complaint would be obnoxious to precisely the same criticism that is urged against this complaint. Both in the complaint before us and in the hypothetical complaint all the facts are alleged which are necessary to disclose a right of action to the plaintiff in a representative capacity and the representative capacity is shown. Therefore it cannot properly be held that the complaint fails to state facts sufficient to constitute a cause of action. On the contrary, every essential fact is disclosed. It may be said to be indefinite whether the plaintiff seeks to sue in the representative capacity or whether he is attempting to sue in a personal capacity; but such defect of pleading is not reached by general demurrer. Under our practice it is reached by a motion to make definite and certain. No such motion was directed to this complaint; nor was special demurrer interposed. The appellant not having so urged her objections to the complaint, cannot now be heard to urge them. Clark v. Morrison, 5 Ariz. 349, 352, 52 P. 985.

2. It is next contended: "That the court erred in instructing the jury that the plaintiff brought the action simply as the representative of and in behalf of those entitled to share in the personal estate of the decedent, in this: the complaint shows upon its face that the action was not brought by Friedman in a representative capacity but in an individual capacity." But to hold this instruction erroneous requires us to hold that the plaintiff sought to maintain an action in his personal capacity, and to ignore the fact that the complaint discloses that the plaintiff was possessed of the representative capacity to sue. The court's instruction merely cured the slight but obvious omission of the complaint definitely, and specifically to aver that the plaintiff sues in the representative capacity which it is averred that he possesses. The defendant having waived this mere...