Burbidge v. Utah Light & Traction Co.

• Citation: 196 P. 556,57 Utah 566
• Decision Date: 08 March 1921
• Docket Number: 3516
• Parties: BURBIDGE v. UTAH LIGHT & TRACTION CO
• Court: Supreme Court of Utah

196 P. 556

57 Utah 566

BURBIDGE v. UTAH LIGHT & TRACTION CO

No. 3516

Supreme Court of Utah

March 8, 1921

Appeal from District Court, Third District, Salt Lake County; W. H Bramel, Judge.

Action by John B. Burbidge, administrator of the estate of Peter Peterson, deceased, against the Utah Light & Traction Company. From a judgment for defendant, plaintiff appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

J. J Whitaker, of Salt Lake City, for appellant.

Bagley Fabian, Clendenin & Judd, of Salt Lake City, for respondent.

GIDEON J. CORFMAN, C. J., and WEBER, J., THURMAN, J., concurring. FRICK, J. dissenting.

OPINION

GIDEON, J.

The plaintiff, as the administrator of the estate of Peter Peterson, deceased, brings this action to recover damages for the death of his intestate. The deceased was employed as a motorman by the defendant company and at the time of the accident was operating a car over one of its tracks. The accident is alleged to have been the result of the negligence of the defendant company. The alleged acts and omissions constituting the negligence are: (a) Defendant used, or suffered to be used, an unsafe, defective, and insufficient street car; and particularly a car with a defective set of brakes. (b) The roadbed of defendant was too lightly constructed, and defendant carelessly and negligently constructed too short a turn without using due care to make a wider circle in said turn. (c) The company failed to place a "stop" or "slow down" sign to warn the motorman of the dangerous curve. The defendant denied the negligence, and, as an affirmative defense, pleaded contributory negligence and assumption of risk. A jury returned a verdict against the plaintiff, finding all issues in favor of the defendant. The case is before this court on the judgment roll and a brief summary of what the evidence offered by the parties tended to prove.

The complaint contains the names of five individuals who, it is alleged, are "the next of kin and heirs of said deceased." The relation of the persons named and designated as "heirs" and "next of kin" does not appear in the complaint. It does appear in the record, however, that the parties named are children of the deceased. Three of the children are over the age of 21 years. Two, namely, James Peterson and Anna Peterson, are respectively of the ages of 15 and 13 years.

The brief summary of the evidence found in the record, and which is certified to by the court, reads as follows:

"Plaintiff offered evidence tending to prove the allegations of his complaint and that said Peter Peterson had supported the said minor children during their infancy, but no evidence was introduced respecting any particular sums of money given by deceased to said minors for their support during the last 18 months prior to his death; and the defendant having given evidence tending to support the allegations of the answer and that the said Peter Peterson was living separate and apart from said minor children for about 18 months prior to his death, and tending to prove that during said 18 months there had been no association between said deceased and said minors, and there was no evidence of loss of society or companionship, the court instructed the jury."

Appellant has discussed but one assignment of error. It relates to the eighth instruction. That instruction is as follows:

"The court further instructs you that in this case you cannot presume that the two minor children suffered pecuniary loss or loss in money because of the death of Peter Peterson, but the burden rests on plaintiff to prove such pecuniary loss, if any has been sustained by them; and plaintiff must show, and, before you can find a verdict in their favor you must find, from the evidence in this case, that decedent recognized that obligation to contribute to the support of said minors and in fact did contribute to their support, and unless the evidence shows that they had prior to his death received, or had reasonable expectation of receiving during a continuance of his life, pecuniary contributions from the deceased, then they cannot recover damages in this action on that account, and in passing upon the question of pecuniary loss, if any, you gentlemen of the jury are not allowed to speculate generally or indulge in assumptions not based on the actual evidence, if any, in the case."

The exception is to the following statement in the instruction:

"Plaintiff must show, and, before you can find a verdict in their favor you must find, from the evidence in this case, that the decedent recognized that obligation to contribute to the support of said minors and in fact did contribute to the support, and unless the evidence shows that they had prior to his death received, or had reasonable expectation of receiving during a continuance of his life, pecuniary contributions from the deceased, then they cannot recover damages in this action on that account."

It is contended by appellant that the rule of law announced in the portion of the foregoing instruction excepted to is error and that it is such error as is prejudicial to the appellant's rights. It is insisted that the statutes of this state imposed a duty upon the deceased to provide for the support and maintenance of his minor children and that the fact, or absence of such fact, that the deceased recognized his obligation, is wholly immaterial.

Whatever may be the rule in other states, the law of this state is that it is the duty of the father to support his minor children. It is made a criminal offense to willfully fail to support one's minor children under the age of 16 years. Comp. Laws Utah 1917, § 8112; State v. Bess, 44 Utah 39, 137 P. 829. See, also, Alvey v. Hartwig, 106 Md. 254, 67 A. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 250.

True, the legal duty, standing alone, in our judgment, does not warrant the recovery of anything in excess of nominal damages; but the legal duty, nevertheless, does exist, and the fact that the deceased recognized it or did not recognize such duty could not conclusively determine the plaintiff's rights in the action. The case cited and relied on by respondent, Fogarty v. Northern P. Ry. Co., 74 Wash. 397, 133 P. 609, L. R. A. 1916C, 800, was an action prosecuted under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). The lower court in that case instructed the jury that it was the legal duty of the deceased in his lifetime to care for and support his wife and child, although he lived separate and apart from them, and that this duty could not be avoided by any voluntary act on his part, and that the wife and child were entitled to damages for the death of the father and husband caused by the negligence of another independently of whether he actually contributed anything to their support. The Supreme Court of Washington held this to be error and based its conclusion on the interpretation of the Employers' Liability Act by the Supreme Court of the United States in cases cited in the opinion. The right to maintain an action and recover damages under the federal Employers' Liability Act as construed by the Supreme Court of the United States is for the benefit of certain relatives enumerated in the statute conditioned upon the dependency of such relatives upon the deceased ( Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; American Railway Co. of Porto Rico v. Didricksen, 227 U.S. 145, 57 L.Ed. 456, 33 S.Ct. 224, 33 S.Ct. 224, 57 L.Ed. 456. Under our statute the right to maintain an action for the wrongful death of an adult is in the heirs or the personal representative for the benefit of the heirs. It may be conceded, I think, as a fundamental principle, that any recovery under like or similar statutes to ours must be founded upon a pecuniary loss and the loss must be such that in contemplation of law it amounts to the deprivation of some service, attention, or care that has in it the element of pecuniary value. That principle was stated by this court in an early case. In Pool v. Southern P. Co., 7 Utah 303, 26 P. 654, the court said:

"If the testimony did not show that there were heirs living who were pecuniarily injured by his death, no recovery should be had, as in that case no one has sustained any pecuniary loss or injury by his death."

What particular facts or elements may enter into this pecuniary loss differ under different statutes.

The Supreme Court of the United States in the cases cited determined that the loss of companionship between a husband and wife was not capable of pecuniary measurement, and therefore was not a proper subject to submit to the jury as an element of damages. It has been repeatedly held by this court that it was proper to submit to the jury, as an element of damages, the loss of the society and companionship as well as the habits of the deceased in regard to his family and what he might be expected to do in the future. Pool v. Southern Pacific Co., supra; Webb v. D. & R. G. Ry. Co., 7 Utah 17, 24 P. 616; Wells v. D. & R. G. Ry. Co., 7 Utah 482, 27 P. 688; Chilton v. U. P. Ry. Co., 8 Utah 47, 29 P. 963; Evans v. O. S. L. R. R. Co., 37 Utah 431, 108 P. 638, Ann. Cas. 1912C, 259.

It has also been held that the right of inheritance, that is, the probability or improbability of the deceased during his lifetime of acquiring an estate which the heirs would inherit, might be considered in determining the damages, if any, which the heirs had sustained.

In discussing the measure of damages in an action for wrongful death, in Spiking v. Railway & Power Co., 33 Utah at page 339, 93 P. at page 847, the court said:

"Under our statute, both the wife and the children were heirs of the deceased, and as such were entitled to recover, not...