Briley v. Nussbaum

• Decision Date: 08 January 1927
• Docket Number: 27,057
• Citation: 122 Kan. 438,252 P. 223
• Parties: ELMER C. BRILEY et al., Appellees, v. MARTIN P. NUSSBAUM et al., Appellants
• Court: Kansas Supreme Court

252 P. 223

122 Kan. 438

ELMER C. BRILEY et al., Appellees, v. MARTIN P. NUSSBAUM et al., Appellants

No. 27,057

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PARENT AND CHILD--Action for Loss of Services--Amount of Recovery. This court cannot say that a verdict for $ 6,305 in favor of the parents of a healthy, intelligent, affectionate, industrious, obedient girl between seven and eight years old against those who have negligently caused her death is excessive.

2. SAME--Action for Loss of Services--Instructions--Right to Anticipate Pecuniary Benefits. An instruction touching the right of parents to anticipate that they would receive help and pecuniary benefits from a dutiful child as long as she lived up to the death of the last surviving parent, examined, and held not prejudicial.

3. TRIAI--Instructions--Necessity of Request for Modification. Where an instruction correctly states the law applicable to the facts shown by the evidence, the litigant complaining of the instruction and desiring a modification of it or an additional instruction must request such modification or such additional instruction.

4. SAME--Correction of Error--Withdrawal of Evidence that Defendant Protected by Insurance. In an action for damages for wrongful death, a judgment will not be reversed on account of the plaintiff's showing in the introduction of his evidence that the defendant had insurance covering his liability for the death where that evidence on the application of the defendant is withdrawn from the consideration of the jury.

5. SAME--Reception of Evidence--Necessity of Objection. Error cannot be based on the admission of evidence introduced without objection.

6. MOTOR VEHICLES--Negligent Speed--Evidence--Skidmarks. It was not error for the court to instruct the jury that, in determining the rate of speed at which the bus was traveling, the length of the skid marks made by the wheels of the bus might be taken into consideration.

7. NEGLIGENCE--Special Questions--Evidence. The answers to special questions numbered 4, 5, 6, 7, 8, and 9 were sustained by evidence.

8. SAME--Pleading and Proof. The answer to special question numbered 3 was embraced within the allegations of the petition, and the answer and the verdict of the jury were supported by evidence.

9. MOTOR VEHICLES--Liability for Death--Instruction as to Statutory Regulation of Speed. It was not error for the court to instruct the jury concerning the statute regulating the speed of motor vehicles at street crossings in cities.

10. SAME--Liability for Death--Instruction as to Ordinance Regulating Operation of Vehicle. It was not error for the court to instruct the jury concerning an ordinance of the city of Wichita regulating the operation of vehicles in that city.

11. NEGLIGENCE--Contributory Negligence--Seven-year-old Child--Jury Question. Whether or not the deceased, a girl between seven and eight years old, was guilty of contributory negligence was a question of fact to be determined by the jury.

Charles G. Yankey, John L. Gleason and Kenneth K. Cox, all of Wichita, for the appellants.

O. A. Keach, of Wichita, for the appellees.

Marshall J. Dawson, J., dissenting.

OPINION

MARSHALL, J.:

The defendants appeal from a judgment in favor of the plaintiffs for damages caused by their daughter, Hazel Briley, being killed in Wichita by a bus driven by the defendant Martin P. Nussbaum, the bus being then operated by the defendants Martin P. Nussbaum and George F. Nussbaum.

1. Defendants claim that the verdict in favor of the plaintiff was excessive. The verdict was for $ 6,305, and judgment was rendered for that amount. At the time of her death, Hazel Briley was between seven and eight years of age. She was healthy, intelligent, affectionate, industrious, and obedient. Elmer C. Briley, the father of Hazel Briley, was then forty-two years old, and Vilena Briley, the mother, was thirty-eight years old. There is no way by which the damages sustained by parents whose child is killed in an automobile accident can be measured; $ 305 of the verdict was for expenses incident to the death of the child. This court cannot say that the verdict for $ 6,000 in favor of the parents for the loss of a child, such as the evidence shows Hazel Briley to have been, was excessive.

2. The defendants urge that "it was error to tell the jury that the parents had a right to anticipate that they would receive help and pecuniary benefits from deceased as long as she lived up to the death of the last surviving parent." The instruction, part of which is complained of, read as follows:

"In this connection, you are instructed that up to the time Hazel Briley would become twenty-one years of age her parents would be entitled to all of her services and to all of her earnings as a minor, but that their measure of recovery is not limited to such pecuniary benefits as they might receive from Hazel Briley during her minority, but that the plaintiffs who are the parents of the deceased child had a right to anticipate that they would receive help and pecuniary benefit from her as long as she lived up to the death of the last surviving parent, and in estimating what amount might have been anticipated by the parents, either before Hazel Briley was twenty-one years of age or after she was twenty-one years of age, you are to exercise your own knowledge and experience in common with that possessed by the generality of mankind with respect to these matters, taking into consideration the age of the parents, their condition in life, the property or lack of property that they have, the condition of their health, the probable length of their lives or of that of the last survivor of them, the occupation of the father and his earning power, the disposition of the child toward her parents, whether it was affectionate or otherwise and whether it was such as prompted her to divide her possessions however small, or whether it was the opposite of this, and all other facts and circumstances adduced in evidence in the case; keeping in mind that it is not possible to itemize these matters or to make definite computations of pecuniary benefits, but only to allow such sum as in your judgment, as instructed by the court, would afford fair and adequate compensation to the parents for the damages which they might suffer by reason of the death of Hazel Briley."

When the entire instruction is considered in connection with that part of it which is objected to by defendants, it does not appear to have stated the law incorrectly. The plaintiffs had the right to expect that their daughter would contribute to their support. (Railway Co. v. Fajardo, 74 Kan. 314, 86 P. 301; Griffin v. Brick Co., 90 Kan. 375, 133 P. 574.)

3. The defendants urge that "it was error to tell the jury that the plaintiffs would be entitled to all of the deceased's services and to all of her earnings as a minor without regard to whether the parents or either of them lived throughout the entire minority of the child." This is another complaint of the instruction which has just been quoted. The instruction concerning the right of the plaintiffs to the services of Hazel Briley did not incorrectly state the law. If the defendants had desired a modification of that instruction, it was their duty to request the court to give such a modification. That does not appear to have been done. They cannot complain of failure of the court so to do. ( State v. Pfefferle, 36 Kan. 90, 12 P. 406; State v. Ross, 77 Kan. 341, 348, 94 P. 270; State v. Page, 80 Kan. 389, 391, 102 P. 780; Hamilton v. Railway Co., 95 Kan. 353, 357, 148 P. 648; State v. Taylor, 119 Kan. 260, 237 P. 1053.)

4. The defendants argue that "it was error for the plaintiff to bring before the jury the suggestion that the defendants had indemnity insurance." F. H. Bishop, an eyewitness of the accident, was called by the plaintiffs. The defendants introduced a statement concerning the accident signed by him on the evening of the accident. After that statement had been introduced in evidence, the witness testified:

"Q. Mr. Bishop, about what time of the day was it when these men called at your house for the statement? A. The best I remember was between seven and eight o'clock; somewhere around near seven o'clock.

"Q. Did they tell you what they wanted the statement for? A. Yes, sir.

"Q. What did they say they wanted it for? A. He said it was the insurance company and he wanted a report. He said he was representing the insurance company and wanted a report.

"MR. GLEASON: We move the answer be stricken out."

There was further evidence concerning the statement. On the request of the defendants, the evidence was stricken out, and the jury was instructed to disregard it.

This court has held that it is error to refer to the fact that an insurance company is resisting a claim for damages for personal injury or wrongful death.

In Smith v. Cement Co., 86 Kan. 287, 120 P. 349, the court said:

"Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must be made to appear that such misconduct prejudiced the rights of the defeated party." (See, also, Stafford v. Noble, 105 Kan. 219, 182 P. 650.)

In Townsdin v. Nutt, 19 Kan. 282, the court declared that:

"Where evidence is erroneously received, and the court thereafter charges the jury to disregard such objectionable testimony, the admission of the testimony in the first instance is not necessarily a sufficient cause for the reversal of the judgment." (See, also, Wallace v. Wallace, 101 Kan. 32, 35, 165 P. 838, and cases there cited.)

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