Coliseum Motor Co. v. Hester

• Decision Date: 26 September 1931
• Docket Number: 1686
• Parties: COLISEUM MOTOR CO. v. HESTER
• Court: Wyoming Supreme Court

3 P.2d 105

43 Wyo. 298

COLISEUM MOTOR CO. v. HESTER

No. 1686

Supreme Court of Wyoming

September 26, 1931

ERROR to District Court, Natrona County; CYRUS O. BROWN, Judge.

Action by Minnie G. Hester as administratrix of the estate of Robert M. Gray, deceased, against Coliseum Motor Company. To review a judgment for plaintiff, defendant brings error.

Reversed and Remanded.

For the plaintiff in error, there was a brief by Gillette & Clark, of Denver, Colorado, and Durham & Bacheller, of Casper, Wyoming and an oral argument by Mr. H. H. Clark.

At common law there was no survival of a cause of action in case of death by wrongful act. Lord Campbell's Act (9 and 10 Vic. 93) for the compensation of families of persons killed by accidents, was passed in England in 1846, and has been enacted in substance, with various modifications, by most of the states. The Wyoming statute 5560, 5561 C. S. being for the benefit of decedent's estate, the amount recovered is distributable to his heirs at law, and as such is a survival statute; this seems to be clearly established by the constitutional provision on the subject. Article IX, Section 4, State Constitution, 36 Cyc. 1132. The jury is authorized to give such damages as they shall deem "fair and just" where liability would have existed, had not death ensued. The character of the damages recoverable for injuries, caused by the negligence of another, include pain and suffering, loss of time, diminished earning capacity treatment, medicine, etc. C. & N.W. Ry. Co. v. Ott 33 Wyo. 202, 237 P. 244. The Nevada statute is identical. Roach v. Mining Co., 7 F. 698; Clark v. Manchester, 62 N.H. 577. The Wyoming statute was adopted in Arizona and has been construed in that state to provide recovery of damages for the estate of decedent. So. P. R. R. Co. v. Wilson, (Ariz.) 85 P. 401; De Amado v. Friedman, (Ariz.) 89 P. 588; Phoenix Co. v. Landes, (Ariz.) 108 P. 247, 112 P. 884, 231 U.S. 578; also citing cases from Alabama, Oregon, Virginia, West Virginia, North Carolina, Washington, Iowa, Kentucky. Sutherland on Damages and Cyc. and the authorities cited therein do not sustain the proposition, and the Arizona decision should not even be persuasive here. The Wyoming statute being one of survival cannot operate where death was instantaneous. 17 C. J. 1197, 17 Cyc. 1325. The reason is obvious. If death was instantaneous, there was no time within which decedent could have brought an action for damages prior to his death, hence nothing survived upon which action could be brought after his death by his representatives. Kearney v. Railroad Co., 9 Cush. 108; Belding v. R. R. Co., (S. D.) 53 N.W. 750; Ramsdell v. Grady, (Me.) 54 A. 763; R. R. Co. v. Shewalter, (Tenn.) 161 S.W. 1136, L. R. A. 1916 C, 964. Instruction No. 13 does not state the law, is vague, ambiguous, misleading and indefinite. It was definitely given under a mistaken theory of damages. Cases cited in support of it are not in point. While evidently attempting to follow a similar instruction in R. R. Co. v. Hayes, Admr., (Fla.) 64 So. 504; it differs materially from the instruction there given and moreover, there was no evidence to warrant such instruction. R. R. Co. v. Ott, supra. There is a broad distinction between the value of money earned by an individual after he is 21 years old, and the present value thereof. Florida C. R. Co. v. Sullivan, 120 F. 799; Russell v. Co., (N. C.) 36 S.E. 191; Mendenhall v. Rwy. Co., (N. C.) 31 S.E. 480; Underwood v. Ry. Co., (R. I.) 80 A. 390. Instruction No. 13 was not signed by the court.

For the defendant in error there was a brief by I. G. McCann and R. R. Rose, of Casper, Wyoming, and oral arguments by Mr. McCann and Mr. Rose.

Secs. 5560 and 5561 C. S. create a new cause of action and are not survival statutes. Tuttle v. Short, (Wyo.) 288 P. 524; Mestas v. Coal Co., 12 Wyo. 414; Burton v. Coal Co., 18 Wyo. 362; Collins v. Anderson, 37 Wyo. 275; Thorpe v. Coal Co., (Utah) 68 P. 145; Trust Co. v. Coal Co., (Utah) 53 P. 524. The Wyoming statute was adopted in Arizona, with the exception of the addition of one or two immaterial provisions. So. P. R. R. Co. v. Wilson, (Ariz.) 85 P. 401; where it was held that the statute created an action for the benefit of the estate of decedent and directed the distribution of damages recovered, among his heirs as an asset of his estate. The rule has been followed in other cases in that state. Defendant's contention is that Secs. 5560, 5561 C. S. merely keeps alive the right of the decedent, had he lived, to sue for injuries. It is urged here where an account of instantaneous death of the decedent, no basis for an action survives. At common law a right of action for injuries, suffered by a person did not survive the death of such person injured, nor for that matter, the death of the tort feasor. Lord Campbell's Act was passed to correct this iniquity in the law. The English statute has been followed with various modifications in about all of the American states. They embody the idea of compensation, whether to the dependent or the estate, and the idea of a penalty imposed upon the wrongdoer for a wrongful act and the decisions on the subject are in hopeless confusion. The Wyoming statute confers broad powers upon the jury to find such damages as it shall "deem fair and just." This court has held that the amount of recovery does not become an asset of the estate of decedent. Tuttle v. Short, supra. We agree with counsel that the authorities cited in the Wilson case from Arizona do not support the rule there adopted. The Oregon cases could not have been decided under a statute like ours, and the Virginia cases cited are not in point. This court has already decided that the Wyoming statute, is not a survival statute. Instruction No. 13 was an attempt to properly modify the instruction followed in the Florida case of Jacksonville Co. v. Bowden, 15 L. R. A. (N. S.) 451, so that it would be applicable to the Wyoming statute, and we believe we succeeded in accomplishing that result. The Florida statute is compensatory, but the Wyoming statute is different in language. The last portion of Instruction No. 13 directs the jury to reduce the elements of damage to a money value, not exceeding the amount sued for, without reference to present worth. The decisions from Rhode Island cannot apply, since their statute is different from ours, and the same may be said of the North Carolina cases. A personal representative, suing under the Wyoming statute, seems to be a statutory trustee, the amount of his recovery not being liable for debts of the estate. Under those circumstances, there is no reason why the damages should be measured by the value of decedent's life alone, since there might be other elements "fair and just" worthy of consideration. There is nothing in Instruction No. 13, prejudicial to defendant. 38 Cyc. 1693. Defendant should have requested other instructions if desired. 5769 C. S., R. R. Co. v. Price, (Okla.) 260 P. 26; Harris v. State, 242 P. 411; Davis v. Graham, 225 P. 789; Joyce Bros. v. Stanfield, (Id.) 189 P. 1104; Depre v. Co., (Wash.) 276 P. 89; Schleier v. Bonella, (Colo.) 214 P. 537; International News v. Co., (Okla.) 247 P. 87; Cincinnati Auto Co. v. Co., (Ohio) 153 N.E. 127.

Gillette & Clark, Durham & Bacheller, in reply.

The Nevada decision controls as to damages recoverable under the statute, since the Wyoming constitutional provision and statute was adopted from Nevada. 36 Cyc. 1154, Roach v. Co., 7 F. 698. Loss of pecuniary support must be alleged and proven. Loss to the estate, loss of companionship to bereaved relatives, are not recoverable. The nature of the damages were not considered in Mestas v. Diamond Coal & Coke Co., 12 Wyo. 414; nor in Collins v. Anderson, 37 Wyo. 275; nor in Thorp v. U. P. R. R. Co., (Utah) 58 P. 145. The Arizona case is not controlling. Instruction No. 13 is clearly erroneous and the judgment should be reversed and a new trial ordered.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This action was brought by Minnie G. Hester, as administratrix of the estate of Robert M. Gray, deceased, against the Coliseum Motor Company, to recover damages from the defendant on account of the death of Gray in an automobile collision on September 21st, 1928, Gray riding in a Chevrolet car as the guest of one Gidley. He was killed instantaneously in the collision of that car with the truck driven by the defendant. The case is here the second time. Hester v. Coliseum Motor Company, 41 Wyo. 345, 285 P. 781, from which opinion many of the facts may be gathered. Upon the retrial of the case, to a jury, a verdict was returned for $ 20,000.00, upon which judgment was entered, and from this the defendant has appealed. Young Gray, at the time of his death, was 19 years and 10 months of age. He left surviving him his mother, two brothers, one sister and one half sister. His mother is married the second time and is supported by her husband. The testimony shows that young Gray was a dutiful and affectionate son, lived with his mother, paid her some money for room and board, and was an energetic and thrifty young man. The sufficiency of the evidence to show negligence on the part of the defendant is not questioned, and the main points herein raised by the appellant relate to the measure of damages and the elements thereof and involve the correctness of an instruction of the court thereon.

1. Up to within less than a century ago, no damages were recoverable for the death of a free human being. Justice Manning was led to remark, in 1885, in the case of Amburg v. R. Co., 37 La. Ann. 650, 55 Am. Rep. 517, that:

"Legislation and jurisprudence have combined to perpetuate the extraordinary doctrine that the life of a free man...