Carnego v. Crescent Coal Co.

• Decision Date: 24 March 1914
• Citation: 164 Iowa 552,146 N.W. 38
• Parties: CARNEGO v. CRESCENT COAL CO.
• Court: Iowa Supreme Court

164 Iowa 552

146 N.W. 38

CARNEGO

v.CRESCENT COAL CO.

Supreme Court of Iowa.

March 24, 1914.

Appeal from District Court, Mahaska County; John F. Talbott, Judge.

Action by a parent for the expenses and loss of services of a minor son, killed, as is alleged, by the negligent act of the defendant. From judgment against it, the defendant appeals. Affirmed on condition.Burrell & Devitt, of Oskaloosa, and John T. Clarkson, of Albia, for appellant.

S. V. Reynolds and McCoy & McCoy, all of Oskaloosa, for appellee.

LADD, C. J.

[1] The facts are sufficiently stated in Carnego v. Crescent Coal Company, 143 N. W. 550, where the action was by the administrator of the estate of the deceased. In this action the father sought to recover for expenses of burial and loss of services, to which he would have been entitled had his son lived until he attained majority. Appellant first contends that there can be no recovery in such a case for funeral expenses. At the common law it was the duty of the father to inter his child upon death decently and to defray the necessary funeral expenses. Reg. v. Vann, 5 Cox. C. C. 379. If death occurred instantly, he could not recover from the wrongdoer causing the loss of services or for funeral expenses (Trow v. Thomas, 70 Vt. 580, 41 Atl. 652), but if the child survived some time, he might recover for such loss up to the time of his demise, together with expenses for medical attendance, nursing, and the like. Louisville, New Albany & Chicago Railway Co. v. Goodykoontz, 119 Ind. 111, 21 N. E. 472, 12 Am. St. Rep. 371;Jackson v. Railway, 140 Ind. 241, 39 N. E. 663, 49 Am. St. Rep. 192;Carey v. Railway, 1 Cush. (Mass.) 475, 48 Am. Dec. 616, and valuable note at page 622; Southern Ry. Co. v. Covenia, 100 Ga. 46, 29 S. E. 219, 40 L. R. A. 253, 62 Am. St. Rep. 312;Augusta Factory v. Davis, 87 Ga. 648, 13 S. E. 577; 29 Cyc. 1641.

[2] The subject is now regulated by section 3471 of the Code, providing that: “A father, or in case of his death or imprisonment or desertion of his family, the mother, may as plaintiff maintain an action for the expenses and actual loss of service resulting from the injury or death of a minor child.” In view of the previous state of the law, there can be no doubt of what was intended by this statute or the word “expenses.” It has reference to the reasonable cost incurred for medicial attendance, nursing, and the like, including that of suitable burial. Cleary v. City Ry. Co., 76 Cal. 240, 18 Pac. 269; 6 Thomp. Neg. § 7093. Statutes authorizing recovery for the wrongful death of a minor child, not specifying expenses, are construedin England and several of the states so as not to include the cost of burial. See Dalton v. Ry., 4 C. B. (N. S.) 296. Consolidated Traction Co. v. Hone, 60 N. J. Law, 444, 38 Atl. 759. These decisions are not in point, and funeral expenses were rightly held recoverable.

[3] II. The only evidence concerning the expenses of burial was that given by plaintiff's son, John Carnego: “Do you know how much the funeral expenses were in this case? A. $529.25. Q. Who paid it? A. I did. Q. Whom did you pay it for? A. I paid it for my father. Q. Who gave you the money to pay it with? A. My father.” Objection was made to each question and overruled. The evidence was admissible as tending to show that the expenses had been incurred and paid. Was it sufficient to establish the reasonableness of the cost? Had the various items making up these expenses and the cost of each been stated, there might have been room for the jury to infer therefrom the reasonable value thereof, and whether they were such as properly might be chargeable against defendant for the interment of a person in deceased's station in life.

[4] It seems well settled that proof of what has been paid for an article of personal property recently in the open market, or when sold at auction, or when it has no market value and its change of condition is shown, is received as furnishing some evidence of its actual or reasonable value. 3 Chamberlayne on Evidence, §§ 2175b, 2175c. Thus in Bird v. Everard, 4 Misc. Rep. 104, 23 N. Y. Supp. 1008, what plaintiff paid for an overcoat in the absence of other proof was held sufficient to show its value and in Small v. Pool, 30 N. C. 47, evidence of what plaintiff gave for a slave and what he afterwards sold her for was admitted as an aid to the jury in assessing damages.

In Motton v. Smith, 27 R. I. 57, 60 Atl. 681, 8 Ann. Cas. 831, the court observed that “an owner is doubtless usually qualified to state the cost price of articles of personal property, and from that, with information as to age and wear, the jury might estimate values.” In Swanson v. Railway, 116 Iowa, 304, 89 N. W. 1088, the holding was that a witness might testify “to the price paid for land as tending to show its market value.” In Richmond v. Railway, 40 Iowa, 264, the cost of a building was received in evidence, not as the measure of damages, but as a means to aid the jury in arriving at its present value. See McMahon v. City of Dubuque, 107 Iowa, 62, 77 N. W. 517, 70 Am. St. Rep. 143;Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131;Sullivan v. Lear, 23 Fla. 463, 2 South. 846, 11 Am. St. Rep. 388;Thompson v. Anderson, 94 Iowa, 554, 63 N. W. 355.

Other cases might be cited illustrating the application of the rule indicated. There is nothing here, however, to show for what the funeral expenses were incurred, or what was paid for the several articles as distinct from services rendered. If the articles were purchased on the open market, the amount paid would be some evidence of their reasonable value. But the question still remains as to the propriety of procuring that which was obtained as reasonably essential to the decent burial of deceased. See Foley v. Brocksmit, 119 Iowa, 457, 93 N. W. 344, 60 L. R. A. 571, 97 Am. St. Rep. 324, where this court exacted a remittitur of all in excess of $150, where $455 had been allowed as funeral expenses. Moreover, it seems quite clear from the authorities that a different rule obtains in proving the value of services rendered or repairs made than in showing what articles of personalty are worth. This is for the ground that no criterion, as that of the open market, is ordinarily furnished the jury by which to estimate the value of what is done. Thus in Hobbs v. City of Marion, 123 Iowa, 726, 99 N. W. 577, it was said: “The jury may, and, indeed, must, be left to place its own estimate upon damages for pain and suffering, for they are not measurable by the test of market values; but the value of services and the amount of damages to property are matters concerning which, under ordinary circumstances, direct and competent evidence is available, and without it they should not go to the jury.”

In Schimpf v. Sliter, 64 Hun, 463, 19 N. Y. Supp. 644, it was adjudged that “to allow proof of the amount paid by plaintiff to his physician without showing the value of the services” was error, and this ruling was confirmed by the Court of Appeals in Gumb v. Railway, 114 N. Y. 411, 21 N. E. 993, where it was held to be error to allow the plaintiff to testify to the amount paid for the reparation of a wagon without evidence of the value thereof and also in allowing him to testify what was a physician's charge for his services without evidence of payment or the value of the services other than the remark of the physician stating the amount of his bill and that it was small.

In Wheeler v. Railway, 91 Tex. 356, 43 S. W. 876, the court held that the injured party must prove what would be reasonable compensation to the physician for the services rendered and would be entitled to recover that amount if he had paid or was liable to pay the same, adding: “It was error in the trial court to submit to the jury the question of the medical bill paid by the plaintiff for services rendered to him, because there was no proof that such amount was a reasonable compensation for the services rendered.” In Massena Savings Bank v. Garside, 151 Iowa, 168, 130 N. W. 918, and Waltham Piano Co. v. Freeman, 141 N. W. 403, allowing the jury to take into consideration the amount paid an attorney without proving its reasonable value, was held to have been erroneous. We have held, however, that where the services rendered are of a nature likely to be familiar to the jury and the charge is not questioned, its reasonableness may be safely left for their determination. Lampman v. Bruning, 120 Iowa, 167, 94 N. W. 562;Scurlock v. City of Boone, 142 Iowa, 684, 121 N. W. 369.

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