Butte Electric Ry. Co. v. Jones

• Decision Date: 05 October 1908
• Docket Number: 1,522.
• Citation: 164 F. 308
• Parties: BUTTE ELECTRIC RY. CO. v. JONES.
• Court: U.S. Court of Appeals — Ninth Circuit

164 F. 308

BUTTE ELECTRIC RY. CO. v. JONES.

No. 1,522.

United States Court of Appeals, Ninth Circuit.

October 5, 1908

W. M Bickford and Geo. F. Shelton, for plaintiff in error.

E. N Harwood, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

This action was brought in the court below by the administrator of the estate of Josephine I. Jacobs, deceased, against the plaintiff in error, to recover damages growing out of the death of the deceased, which the complaint alleged to have been caused by the negligence of the defendant railway company. It also alleged that the deceased left surviving her a son, Harry B. Jacobs, who was, at the time of her death, 17 years of age; that 'the said Harry B. Jacobs, the minor heir of said deceased, had no other means of maintenance or education than that provided for by his mother from her earnings; and that by reason of her death said Harry B. Jacobs had been deprived of home and maintenance and opportunity of education.'

The allegations quoted were put in issue by the answer of the defendant company. The trial resulted in a verdict of $4,000 upon which judgment against the company was entered, with costs.

The brief of the plaintiff in error states:

'It was practically admitted, and there was no substantial controversy as to the negligence of the defendant, as alleged in the complaint. The questions presented for consideration of the court and jury throughout the trial were: First, whether the plaintiff had any right in law to maintain the suit; second, whether, in case he had, a recovery must be confined to the damages suffered by the estate alone, or whether the damages suffered by the minor heir were proper to be awarded by the jury; and, third, if the damages suffered by the minor heir were proper to be considered by the court and jury, what was the measure of the damages suffered by him?'

The first two questions thus referred to were decided by us adversely to the contention of the plaintiff in error in the recent case of Alder Company v. Fleming, Administrator, 159 F. 593, leaving the sole questions for decision in the present case those growing out of the proper measure of damages.

In the course of the trial the counsel for the defendant contended that the recovery, if any, should be limited to the pecuniary loss suffered by the minor heir prior to his majority. The court ruled against that contention, and, in instructing the jury upon the subject of damages, told them that in ascertaining such damages they were 'not confined to the period prior to, or only up to, the time when said Harry B. Jacobs would arrive at the age of 21 years. ' The defendant reserved an exception to the action of the court in each of those particulars. We think the ruling right.

Counsel cite in support of the point Stoher v. St. Louis, etc Ry. Co., 91 Mo. 509, 4 S.W. 389, and David v. Southwestern R.R. Co., 41 Ga. 223. So far as can be seen from the opinions in those cases, in neither one was the precise point adjudged or presented. In Stoher v. St. Louis, etc., Ry. Co., an infant, by her next friend, brought the action to recover damages for the death of her father. We do not find in the opinion in that case any suggestion favorable to the contention of the plaintiff in error here, but, on the contrary, an implied approval of the case of Tilley v. Hudson River R.R. Co., 29 NY. 252, 86 Am. Dec. 297, hereinafter referred to. The case of David v. Southwestern R.R. Co. was originally brought by the widow of one Charles Rogers, who was killed by an engine on the Southwestern Railroad, pending which action the widow died, leaving minor children of herself and her deceased husband. David, as prochien ami of the minors, was made a party plaintiff to the action and prosecuted it for the benefit of the minors. The question prosecuted to the Supreme Court of the state related to the proper measure of damages in the action by the children. The language of the section is not given in the opinion of the court, but the court does expressly state that it 'is not so clear as the importance of the subject demands,' and in disposing...