Christensen v. Floriston Pulp & Paper Co.

• Decision Date: 01 November 1907
• Docket Number: 1,726.
• Citation: 92 P. 210,29 Nev. 552
• Parties: CHRISTENSEN v. FLORISTON PULP & PAPER CO.
• Court: Nevada Supreme Court

92 P. 210

29 Nev. 552

CHRISTENSEN v. FLORISTON PULP & PAPER CO.

No. 1,726.

Supreme Court of Nevada

November 1, 1907

Appeal from District Court, Washoe County.

Action for death by George Christensen, administrator of George Jorgensen, against the Floriston Pulp & Paper Company. From a judgment for plaintiff, and an order denying a new trial defendant appeals. Affirmed on condition of remittitur otherwise reversed, and new trial granted.

S Summerfield, for appellant.

Jas. T. Boyd and C. H. Wilson, for appellees.

NORCROSS J.

This is an action brought by respondent in the Second judicial district court of the state of Nevada, in and for Washoe county, to recover a judgment for damages against the appellant for the death of the said George Jorgensen while employed in respondent's paper mill at Floriston, in the state of California, which death is alleged to have been occasioned by appellant's negligence. It was decedent's duty to cook wood pulp in a large cylindrical digester, and, when the same had been properly cooked, to draw it off from said digester to what was known as the "blow-pit tank." The evidence shows that at about noon, August 31, 1905, the deceased was found buried in a mass of paper pulp at the foot of the digester. The 12-inch valve at the bottom of the digester was found to be open about 2 inches and the discharge pipe was broken off immediately beyond the valve, and for the space of a foot, or a foot and a half, it had fallen away. The action is brought for the benefit of decedent's father and mother, who are residents of Denmark. It is admitted by the pleadings that at the time of the death of the said decedent and at the time of the action the Civil Code of the state of California contained the following provisions: "When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just." Section 377, Code Civ. Proc. Cal. "If the decedent leave no issue, nor husband nor wife, the estate must go to his father and mother in equal shares, or if either be dead then to the other." Subdivision 2, § 1386, Civ.

Code Cal. At the times in question the Code of this state contained, and now contains, the following provisions: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof then, and in every such case, the persons who, or the corporation which would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony. Such liability, however, where not discharged by agreement and settlement shall exist only, in so far, as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose. If the person or corporation against whom damages are claimed cannot be duly served with process in this state, the action to ascertain and adjudge liability for such damages may be brought and prosecuted in any court of competent jurisdiction in any state or territory where such person or corporation is found and duly served with process thereof." Comp. Laws, § 3983, as amended by St. 1905, p. 254, c. 148. "The proceeds of any judgment obtained in any action brought under the provisions of this act shall not be liable for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows: First. If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then, equally to each, the grandchild or children taking by right of representation; if there be no child or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and, provided further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named." Comp. Laws, § 3984. Trial was had by jury and a judgment rendered in favor of plaintiff for $10,000 damages. From the judgment and an order denying defendant's motion for a new trial, defendant appeals.

1. Counsel for respondent duly noticed a motion to dismiss the appeal upon the ground that it affirmatively appears from the record that no notice of appeal was ever given as required by law, and, further, that no undertaking on appeal has been executed by appellant. In this case the original papers were certified to this court pursuant to the provisions of section 3862 of the Compiled Laws, and it appears that at the time the clerk of the court below made such certificate the notice and undertaking on appeal had become misplaced, and were not certified with the other papers. Prior to the argument in this court the lost papers were found, certified to by the clerk, and filed in this court and cause. Also, prior to the argument, appellant's counsel moved that the record on appeal be amended or corrected by adding thereto the notice and undertaking on appeal. The motion was submitted, and in the meantime the entire record was returned to the clerk of the court below, that his certificate thereto might be amended so that the same might conform to the requirements of the statute and the same was so amended. Rule 7 of this court provides: "For the purpose of correcting any error or defect in the transcript from the court below, either party may suggest the same, in writing, to this court, and, upon good cause shown, obtain an order that the proper clerk certify to the whole or part of the record, as may be required, or may produce the same, duly certified, without such order. If the attorney of the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion, except when a certified copy is produced at the time, must be accompanied by an affidavit showing the existence of the error or defect alleged." 73 Pac. xiii. We think there was a substantial compliance with the provisions of this rule, and that it is a proper case for the permission of the amendment of the record as requested, and the same is allowed, and the motion to dismiss is denied.

2. It is very earnestly contended by appellant's counsel that the courts of this state have no jurisdiction of this cause for the reason that the death of deceased was occasioned and occurred in the state of California, and that, "owing to the peculiar policy of the state of Nevada with reference to actions of this kind, its courts will not, through so-called comity, take jurisdiction of this cause." At common law an action for damages resultant from death by wrongful act could not be maintained. The first legislation in English-speaking countries permitting an action of this character was by the British Parliament in 1846, which passed what has since been known as "Lord Campbell's Act." Similar statutes have since been passed in most, if not all, of the states of this country. While these statutes differ somewhat in their terms, their general purpose was substantially the same. A variety of decisions may be found upon the question whether the courts of one state will assume jurisdiction of an action brought therein for damages for a death occasioned in another state. A number of early decisions held that such jurisdiction did not exist or would not be assumed unless the statutes of both states were essentially the same. What is now regarded as the leading case on questions of this kind is Dennick v. Railroad Company, 103 U.S. 11, 26 L.Ed. 39. In that case action was brought in the state courts of New York for a death occasioned in New Jersey. The case was removed to the Circuit Court of the United States, which court held that the plaintiff could not under the special statute of New Jersey recover in the action. Upon appeal to the Supreme Court of the United States the decision was reversed; the court, by Justice Miller, saying: "It can scarcely be contended that the act belongs to the class of criminal laws which can only be enforced by the courts of the state where the offense was committed, for it is, though a statutory remedy, a civil action to recover damages for a civil injury. It is indeed a right dependent solely on the statute of the state; but when the act is done which the law says the person shall be liable, and the action by which the remedy is to be enforced is a personal and not a real action, and is of that character which the law recognizes as transitory and not local, we cannot see why the defendant may not be held liable in any court to whose jurisdiction he can be subjected by personal process or by voluntary appearance, as was the case here. It...