Bottum v. Kamen

• Decision Date: 07 January 1921
• Docket Number: 4761.
• Citation: 180 N.W. 948,43 S.D. 498
• Parties: BOTTUM v. KAMEN.
• Court: South Dakota Supreme Court

180 N.W. 948

43 S.D. 498

BOTTUM v. KAMEN.

No. 4761.

Supreme Court of South Dakota

January 7, 1921

Appeal from Circuit Court, Brown County; Frank Anderson, Judge.

Action by Roswell Bottum, as administrator of the estate of Harry R Everett, deceased, against Frank Kamen, Sr. Judgment for plaintiff, and defendant appeals from the judgment and from the order denying new trial. Affirmed.

Van Slyke & Agor, of Aberdeen, for appellant.

Williamson Williamson & Smith, of Aberdeen, for respondent.

SMITH J.

Action by Roswell Bottum, administrator of the estate of Harry R Everett deceased, a minor, for the benefit of Mrs. Nettie Hitt, his mother. The son was killed by the explosion of the boiler of a steam threshing machine engine, alleged to have been caused by defendant's negligence. The deceased was an employé of defendant. Appellant challenges the authority of the administrator to maintain the action.

A petition was filed by Mrs. Hitt in the county court, asking her own appointment as administratrix of the estate of her deceased son. Notice of this application was given as required by statute. On the day set for the hearing Mrs. Hitt filed in the county court a written waiver of her right to such appointment and a request that one Roswell Bottum be appointed such administrator. Bottum was appointed, and, having qualified, brought this action and recovered a judgment. Appellant now contends that the appointment of Bottum was void and conferred no authority upon him to maintain the action. The specific contention is that by this procedure other persons having prior right to such appointment would have had no notice of any application for the appointment of a stranger to the proceedings, that such persons might desire to waive their prior right in favor of the applicant, but not in favor of a stranger, and that the county court was without jurisdiction to make such an appointment.

It is conceded that the petition is sufficient, and that due notice of the application of Mrs. Hitt for her own appointment as administratrix was given, and that an order appointing her would have been valid. It necessarily follows that the county court had jurisdiction to appoint an administrator, and the appointment of Bottum, even if irregular-which we do not decide-was not void, and cannot be attacked collaterally. Blackman v. Mulhall, 19 S.D. 534, 104 N.W. 250; 11 R. C. L. p. 86, § 84.

There are 78 other assignments of error grouped and discussed under three heads specified in the notice of intention to move for a new trial, viz.: (1) Excessive damages appearing to have been given under the influence of passion; (2) insufficiency of the evidence to justify the verdict; (3) errors in law occurring at the trial.

Under the latter head appellant sets out numerous requests for instructions refused by the trial court. The instructions given, other than particular portions thereof excepted to and assigned as error, are not in the record, nor it is made to appear that instructions equivalent to those refused were not given by the trial court.

The rule is well settled in this jurisdiction that, in the absence of an affirmative showing to the contrary, this court will presume that the jury were fully and correctly instructed upon all material matters, and, in the absence of such showing, prejudicial error is not made to appear.

In Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852, this court said:

"In the absence of the instructions that were given by the court, error cannot be predicated upon the refusal to give a requested instruction." Ochsenreiter v. Block, 173 N.W. 734, 6 A. L. R. 456; Collison v. Davis, 37 S.D. 107, 156 N.W. 786.

An assignment of insufficiency of the evidence to justify the verdict presents the principal question discussed in appellant's brief. Appellant's contention is that the evidence is insufficient to justify the amount of the verdict which was for $5,000.

The deceased was the minor son of plaintiff, and appellant first suggests that damages should be limited to the earnings of the minor up to the time he would have attained his majority. It is conceded, however, that the majority rule is that the person for whose benefit the action is brought may recover whatever prospective loss the evidence shows he has sustained in the way of pecuniary benefit which he might reasonably have expected to receive had the deceased passed his majority, and that the question here presented is:

"What evidence or what facts or circumstances must be introduced in order to show that a parent had a reasonable expectancy of pecuniary benefit from the continued life of the deceased."

The record discloses that the deceased was approximately 19 years of age at the time of his death; that he was an illegitimate child; that his mother is 36 years old; that she was married to Chas. Hitt after the deceased was born; that she was divorced October 28, 1918; that after her child was born the mother and child lived with her parents for about eight years; that her son had finished or about finished the eight grade in school; that at the time of his death he was in good physical condition; that in April, 1919, he left Mound City, Mo., where he had lived with plaintiff since her divorce, and went to Montana, where he worked for a time, and then came to South Dakota; that before he left Mound City he was working for his grandfather, and in a cement factory, where he received wages from $3.50 to $4 a day; that after he left Mound City in April, 1919, and up to the time of his death in August, 1919, he had sent his mother $50 at one time, $20 at another, and $20 at still another time; that the last amount was sent just before he went to work for the defendant at 50 cents an hour. The evidence also shows that he had contributed to his mother's support from his earnings before he left Mound City, but the amount of such contributions is not shown. The evidence shows that plaintiff has been working as a dressmaker since 1909, and that she has a home with some incumbrance, in Mound City.

American Experience Tables of Mortality were received in evidence to show expectancy of life of plaintiff and her deceased son as appears by the proceedings at the trial, and, though this table is not in the record before us, it was before the jury, and we must presume that expectancy of life was shown to justify the amount of the verdict so far as that element of proof enters into the award of damages. This proof of course is of much importance as affecting the amount of damages. It is in fact one of the chief factors in estimating the amount of such damages, where it appears that the beneficiary has sustained or may sustain pecuniary injury by reason of the death.

Our statute provides that (section 2931, Code 1919)-

"In every action the jury may give such damages, not exceeding in any case $10,000, as they may think proportionate to the pecuniary injury resulting."

By computations based upon the foregoing evidence as to earnings and earning capacity of deceased, and his contributions to his mother, appellant contends and endeavors to demonstrate mathematically that the pecuniary injury, present and prospective, sustained by the mother, could not equal the amount of the verdict, and that therefore the evidence is insufficient to justify the verdict.

In I. & G. N. Ry. Co. v. Ormond, 64 Tex. 485, in discussing a similar proposition in an action for damages for death by negligence, the court said:

"Taking into consideration the age, life, expectancy and earnings of the deceased at the date of his death, an easy calculation, such as that suggested by appellant's counsel, would yield a much smaller sum than that awarded by the verdict. But the additional experience and skill which may have been acquired in some of the years of life he was deprived of would increase his wages, and this element of uncertainty deprives us of the arithmetical standard suggested in appellan

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