American R. Co. of Porto Rico v. Santiago, 1789.

• Decision Date: 05 January 1926
• Docket Number: No. 1789.,1789.
• Citation: 9 F.2d 753
• Parties: AMERICAN R. CO. OF PORTO RICO v. SANTIAGO et al.
• Court: U.S. Court of Appeals — First Circuit

9 F.2d 753 (1926)

AMERICAN R. CO. OF PORTO RICO v. SANTIAGO et al.

No. 1789.

Circuit Court of Appeals, First Circuit.

January 5, 1926.

Francis H. Dexter, of San Juan, Porto Rico, for plaintiff in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge.

This is an action brought in the federal District Court for Porto Rico by Juan Ramon Santiago and Juana Arroyo to recover damages occasioned by the death, on March 11, 1922, of their minor son, Ramon Santiago Arroyo, through the alleged negligence of the defendant at a grade crossing in the city of Mayaguez. It was brought under the provisions of sections 60 and 61 of the Code of Civil Procedure of Porto Rico, which provide:

"Sec. 60. A father, or in case of his death, or desertion of his family, the mother, may maintain an action for the * * * death of a minor child, * * * when such * * * death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the * * * death, or if such person be employed by another person who is responsible for his conduct, also against such other person.

"Sec. 61. When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."

There was a trial by jury, and a verdict for the plaintiff for $6,000, on which judgment was entered, and this writ of error prosecuted.

The errors relied upon are (1) that the court erred in refusing to grant defendant's motion to dismiss the complaint made at the close of the plaintiff's case; (2) that it erred in refusing to grant a like motion to dismiss the complaint made at the close of all the evidence (a) because Juan Ramon Santiago, the father, had no right of action, as his wife, Juana Arroyo, had obtained a divorce from him on October 18, 1913, about eight years and five months prior to the death of the son, and that the court granting the divorce awarded the custody of the son to the wife, together with the patria potestas, and (b) because there was no evidence from which the jury could legally assess any damages in favor of the wife or husband; (3) that the damages awarded are grossly excessive, not supported by the evidence, and are the result of prejudice; and (4) that the court erred in refusing to give the following instructions:

"You are instructed that, if you believe from the evidence that the defendant company maintained a watchman and chains at the crossing in question for several years, but only at certain hours, the boy Ramon Santiago could not rely upon any duty of defendant to place the chains at any other than those hours, in the absence of any order of the Executive Council or the Public Service Commission requiring it to do so. In this connection the court instructs you that as a matter of law the defendant company was under no obligation to maintain such watchman and chains at the crossing in question, in the absence of any order from the Executive Council or the Public Service Commission, its successor."

We do not find it necessary to consider the questions raised by the motion made at the close of the plaintiff's evidence, for the defendant by presenting its defense waived its rights thereunder, and because the same question is presented by the second motion, made at the close of all the evidence.

The question raised by the second motion is whether or not a verdict should have been directed for the defendant, so far as Juan Ramon Santiago was concerned, on the ground that he had no right to maintain the action (a) because the evidence showed that the wife had obtained a divorce eight years prior to the accident and had been awarded the custody of their minor child, Ramon, together with the patria potestas; and (b) because, as defendant contended, the plaintiffs had failed to offer any proof from which damages could be found in favor of either plaintiff.

On the question of the right of the father to maintain the action for the death of his minor child section 60 expressly provides that "a father, or in case of his death, or desertion of his family, the mother may maintain" it. The evidence in the case shows that the father is alive; that the mother had, some eight years prior to the son's death, obtained a divorce with a right to the parental control and custody of the child. It further shows that there were several children in the family; that, after obtaining a divorce, the mother left the children with the father and went to Santo Domingo where she remained; and that the father thereafter maintained a home for and supported and educated the children, including Ramon.

On this evidence, notwithstanding the divorce, it could not be found that the father had deserted his family, so as to deprive him of the right to maintain the action and give it to the mother, within the terms of section 60.

This question was before the court in Clark v. Northern Pacific Ry., 29 Wash. 139, 69 P. 636, 59 L. R. A. 508. The provision of the Code there under consideration was identical with that of section 60 of the Porto Rican Code. The action was brought by the mother for the death of her minor son, and it was objected that she had failed to show any right enabling her to maintain the action. The accident occurred in 1901. In 1897 the parents were divorced, and by the terms of the decree the custody of the son was awarded to the father. The father kept the boy about two weeks, then brought him back to the mother and said, if she would keep him, he would provide for his support. He paid the mother $10 towards the son's support, and then went away and was not heard from thereafter. He made no further contribution. At the time of the accident the boy had been living with and supported by the mother for a period of three years. In that case it was contended by the defendant that by the divorce the family status was broken, so there could be no longer a desertion of the family within the meaning of the statute; but the court held that on the facts in the case it appeared that the father had abandoned the boy, and the family status as "between the mother and child, as constituted by natural relationship, was not broken by the divorce, and their companionship as members of the same household continued"; that "the family status as thus constituted was left by the father without any contribution on his part towards its support"; and that it "was not only an abandonment of the child, but also of the family, within the meaning of the statute."

As on the facts in this case the father cannot be found and held to have deserted the family, the right to maintain an action remained in him.

The second reason assigned by the defendant for granting the motion to dismiss is without merit. The father having the right to maintain the action for the death of the son, the motion to dismiss could not have been granted, even though he had failed to offer proof of substantial damage, for, in any event, he was entitled to nominal damages; and no question is presented as to whether the mother was or was not improperly joined as plaintiff.

While there is no assignment of error questioning the elements of damage which the jury might take into consideration in awarding damages under these sections of the Code, or whether there was evidence from which it could find substantial damages, a brief discussion of these matters will be helpful.

In American R. Co. v. Ortega, 3 F.(2d) 358, this court had under consideration the question of damages that might be awarded under section 61 in an action for the death of an adult daughter, the action having been brought by the father for her death, and it was held (1) that the father need not show that he was legally entitled to any portion of the earnings of the daughter in order to establish a pecuniary loss, and (2) that he might recover the probable benefits he would have received during his lifetime from the deceased child; that such benefits were not limited to mere contributions of money, but might consist of various elements that entered into the domestic relations of parent and child and while living in one family or otherwise; that, while no damages could be given for the pain or anguish suffered by the deceased, the pecuniary loss for which recovery may be had included all the pecuniary losses which the circumstances established with reasonable certainty would be suffered by the plaintiff in the future because of the death; and that, as it appeared in that case that the daughter, 26 years of age, made her home with her father, though away at work at the time of the accident, and while away at work aided him financially, and when at home assisted...