Beaman v. Martha Washington Min. Co.

• Decision Date: 07 January 1901
• Citation: 63 P. 631,23 Utah 139
• Court: Utah Supreme Court
• Parties: JACOB BEAMAN, Respondent, v. THE MARTHA WASHINGTON MINING COMPANY, a Corporation, Appellant

63 P. 631

23 Utah 139

JACOB BEAMAN, Respondent, v. THE MARTHA WASHINGTON MINING COMPANY, a Corporation, Appellant

Supreme Court of Utah

January 7, 1901

Rehearing denied February 12, 1901.

Appeal from the Fifth District Court, Juab County.--Hon. E. V. Higgins, Judge.

Action for damages for the negligent killing of plaintiff's minor son by defendant. From a judgment for plaintiff defendant appealed.

AFFIRMED.

Messrs Rawlins, Thurman, Hurd & Wedgewood and Messrs. Bennett Harkness, Howat, Sutherland & Van Cott, for appellant.

It will be seen from sections 2911 and 2912, giving the right of action, that in this class of cases, in case of a minor, the right is confined to the father, mother or guardian, according as the parental relation may exist, and that such damages may be given, as under all the circumstances of the case may be just. The heirs of a minor, as heirs, are given no right of action. It is exclusively confined to the parent or guardian as such.

"In an action for the benefit of a parent for the death of a minor child, the damages necessarily include the loss of the child's services, during minority and the measure of damages is the value of the services, less the probable cost of the support and maintenance." Death by Wrongful Act, Tiffany, sec. 164; 8 Am. and Eng. Ency. of law (1 Ed.), p. 919; Louisville Ry. Co. v. Goodykoontz, 12 Am. State Reports, note p. 381; Penn. Co. v. Lilly, 73 Ind. 252; Mayhew v. Burns, 103 Ind. 328; Little Rock and Fort Smith Ry. Co. v. Barker (Ark.), 34 Am. Repts. 44.

Many courts of last resort have passed upon instructions similar to the instruction in the case at bar, and we respectfully submit the following cases to the consideration of the court: Morgan v. Southern P. Co. (Cal.), 30 P. Rep. 603; Beeson v. Mining Co., 57 Cal. 20; Monro v. Reclamation Co., 84 Cal. 515; Ohio, etc., R. R. Co. v. Tindall (Ind.), 74 Am. Dec. 262; Fox v. Oakland Consol. St. Ry. (Cal.), 50 P. 28; Pepper v. Southern P. Co., 105 Cal. Reps. 403; Morgan v. Southern P. Co., 95 Cal. 510, 29 Am. St. Rep. 143; Harrison v. Sutter St. Ry. Co. (Cal.), 47 P. Rep. 1022; Atchison, T. & S. F. R. Co. v. Wilson, 1 C.C.A. Reps. 25.

It has been many times held by appellate courts that the mere asking of a question, where it is apparent to everybody that the question is improper, and where the mere asking is likely to be prejudicial to the interests of the adverse party, is erroneous, and that the case will be reversed and a new trial granted upon this ground alone. 16 Am. and Eng. Ency. of Law, 528; People v. Wells, 34 P. 1078; Birmingham Nat. Bank v. Bradley (Ala.), 19 So. 791, 795; McDuff v. Detroit Evening Journal Co. (Mich.), 47 N.W. 671; Belyea v. Ry. Co. (Min.), 63 N.W. 627; Cleveland Paper Co. v. Banks (Neb.), 16 N.W. 833; S. C. 48 Am. Rep. 334.

Messrs. Power, Straup & Lippman for respondent.

The substantial complaint defendant makes is that the court erred in his charge on the measure of damages.

The defendant is not in a position to have reviewed this alleged error; for the reason that proper exceptions were not taken to the charge. Nebeker v. Harvey, 21 Utah 356; Haun v. Railroad, 22 Utah 346.

"In an action for causing the death of a child damages are not to be restricted to its services during minority, as the measure of damages, under the statute authorizing recovery for a wrongful death, is the whole pecuniary loss sustained thereby, and the fact that the deceased was an infant does not change the rule." Birkett v. Knickerbocker Ice Co., 110 N.Y. 504; Coghlan v. Third Ave. R. R. Co., 110 N.Y.S. 113; B. & O. R. Co. v. State, 60 Mo. 449; G. C. & S. F. Ry. Co. v. Compton, 75 T. 667; Petrie v. Railroad, 29 S.C. 303; Strother v. S. C. & G. R. Co. (S. C.), 25 S.E. 272; F. C. P. R. Co. v. Foxworthy, 13 Am. and E. R. Cases, 469, 25 So. 338; R. and D. R. Co. v. Freeman, 97 Ala. 289; Hyde v. U. P. Ry. Co., 7 Utah 359.

That the loss of comfort, society and companionship are proper elements of damages we also cite: Wells v. Ry. Co., 7 Utah 482; Pool v. Ry. Co., 7 Utah 303; Chilton v. Ry. Co., 8 Utah 48; Beeson v. Green Mountain Mfg. Co., 57 Cal. 20; Cook v. R. R. Co., 60 Cal. 604; Cleary v. Railroad, 76 Cal. 240; Monroe v. Dredging Co., 84 Cal. 527; B. & P. R. R. Co. v. Mackey, 157 U.S. 72; 39 L.Ed. 624; Erslew v. N. O. & N. E. R. Co., 21 So. 153; L. A. & C. R. Co. v. Rush, 127 Ind. 545; Simmons v. McConnell, 86 Va. 194.

"Under a statute permitting parents to recover for the negligent killing of their minor child such damages as the jury may think proportionate to the injury, the recovery can not be limited to such pecuniary benefits as the parents might have received from the child prior to his majority." Texas & P. R. Co. v. Wilder, 92 F. 953; Houston City St. R. Co. v. Sciaacca, 80 Tex. 350; G. C. & S. F. Co. v. Compton, 75 Tex. 667; Boyden v. Fitchburg R. Co., 70 Vt. 125, 39 Atlantic 771; Bowles v. Railroad Co., 46 Hun. 324; Holt v. Spokane etc., R. Co., 35 P. 39; Ill. Cen. R. Co. v. Reerdon, 157 Ill. 372, 86 Iowa 677; City of Chicago v. Keefe, 114 Ill. 222; Railroad Co. v. Slater, 128 Ill. 91; Rockford etc. R. Co. v. DeLaney, 82 Ill. 192; Flarherty v. N.Y. & N.H. R. Co., 19 R. L. 604, 35 Atlantic 308; A. T. & S. F. R. Co. v. Cross, 49 P. 599, 58 Kan. 424; Pierce v. Connors, 20 Col. 178; Hopkinson v. Knapp & S. Co., 20 Iowa 328; Thompson v. Johnson Bros., 86 Wis. 576; Maderia v. Pottsville, 160 Pa. 109; Ft. Worth etc. R. Co. v. Hyatt, 34 S.W. 677; Davis v. Railroad Co., 55 Ark. 462; Augusta Factory v. Davis, 87 Ga. 648.

Complaint is made because plaintiff's counsel asked Joseph Hurd if the firm of Rawlins, Thurman, Hurd & Wedgewood represented an insurance company in this case.

Defendant's objection thereto was promptly sustained. The authorities cited by appellant on this contention are not applicable.

"There must be such a palpable wrong in the conduct of counsel as to justify the conclusion that he was actuated by bad faith to warrant a new trial for his misconduct." People v. Searcy, 121 Cal. 1.

HART, Dist. Judge. Baskin, J., and Cherry, Dist. Judge, concur.

OPINION

STATEMENT OF FACTS.

This action is brought by plaintiff for the negligent killing of his minor son by the defendant. The complaint alleges the negligent construction by the defendant company of a track in one of the shafts or inclines of its mine; that the said track was uneven and rough so that a skip being operated upon the same was likely to be thrown off the track; that the bell or signal rope was negligently placed too near the track; that defendant negligently used an unsafe skip which from certain defects enumerated could not be run without dumping or running off the track; that defendant negligently employed an incompetent and careless engineer, who operated the skip in a jerky and unsafe manner; that plaintiff's son of the age of sixteen years was employed by the defendant in general work about the surface of defendant's mine and was inexperienced in the underground workings of mines and was unfamiliar with skips, equipments and appliances used in lowering and raising persons and objects in said mine and was otherwise unfamiliar with the workings and operation of mines in general; that defendant, on the day in question, carelessly directed said minor to the bottom of the shaft in said skip and that by reason of all the negligent acts alleged said minor was killed.

There is evidence in the record that the track down the incline or shaft of defendant's mine was not straight but curved was uneven (that is, not on the same incline all the way down) and rough; that the attention of defendant's foreman had been called to the condition of the track; that upon said track an "automatic dumping skip," was operated by steam, and that the ordinary way for men to go up and down the mine was in the skip; that the hanging wall of the shaft came down in places to within ten inches of the top of the skip; that the bell rope was placed along the side of the track on the wall plates on the bottom of the incline below the iron rails; that to reach the bell cord while riding up or down the skip one had to reach over the side of the skip and down to the wall plates, and to do so there was danger of knocking one's head against the roof; that the bell cord should have been placed on the side of the shaft even with or a little above the top of the skip where it would have been convenient to reach; that there were only a few staples holding the bell cord in place upon the wall plates so that if a person were not careful in handling the bell cord it would become entangled in the wheels of the skip; that there should have been staples every ten or twenty feet to hold the bell cord in place; that there were no "safety" appliances on the skip to prevent it turning over off the track; that the dumping apparatus was defective; that the engineer in operating the skip would open the throttle of the engine and carelessly sit back in his chair and talk to people while the men were being hauled up; that complaints of this were made to the shift boss about ten days before the accident; and that the skip was known to jump the track some four or five times before the accident. On the day of the accident the skip was sent down for plaintiff's son and one Zuckswert, and as the skip was being drawn up it was discovered to be off the track. The skip was found at about the 200 foot level empty, dumped and turned upside down off the track with indications that the bell cord had wound about the wheels and that the skip had been dragged ten or fifteen feet after turning over. Plaintiff's son and Zuckswert were found at the bottom of the shaft about 350 feet from the surface, both dead. Deceased was hired to do chores on top of the mine, and plaintiff did...