Cox v. Remillard

• Decision Date: 18 October 1956
• Docket Number: No. 14910.,14910.
• Citation: 237 F.2d 909
• Parties: Charles COX and Albert Earl Jones, Appellants, v. Agnes H. REMILLARD, Administratrix of the Estate of Edward S. Remillard, Deceased, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

237 F.2d 909 (1956)

Charles COX and Albert Earl Jones, Appellants, v. Agnes H. REMILLARD, Administratrix of the Estate of Edward S. Remillard, Deceased, Appellee.

No. 14910.

United States Court of Appeals Ninth Circuit.

October 18, 1956.

Ryan & Pelay, John D. Ryan, James J. Kennedy, Portland, Or., John Gavin, Yakima, Wash., Edwin L. Dunnavan, Pasco, Wash., for appellants.

Arthur S. Vosburg, William H. Hedland, Frank Bosch, Portland, Or., for appellee.

Before STEPHENS, POPE and CHAMBERS, Circuit Judges.

POPE, Circuit Judge.

This was an action under the Oregon Wrongful Death Act, brought in the court below by reason of the diversity of citizenship of the parties. The defendants, appellants here, were charged with having caused the death of Edward S. Remillard, the plaintiff's decedent, through the negligent operation of a tractor at a place near The Dalles, Oregon. Edward S. Remillard was then three years of age and had a life expectancy of 61 years. Upon trial to the court without a jury, the plaintiff administratrix recovered judgment for $10,000 general damages, and $238 special damages. (The latter were for funeral expenses.)

No question is raised upon this appeal as to the propriety of the trial court's finding of negligence on the part of the defendants. All the assignments of error relate to the amount of the judgment. It is not only alleged that the award is excessive and based wholly upon speculation, but that the Oregon statute does not permit any recovery for the benefit of the estate of a three year old decedent, and that a construction of such statute as permitting any such recovery would render the Act unconstitutional.

The Oregon Wrongful Death Act, Oregon Revised Statutes, § 30.020, is copied in the margin.¹ The key provision of the section, insofar as it concerns a case like this, where there is no spouse and no dependents, is that the recovery shall be "for the benefit of the estate of the decedent". This serves to put certain limitations upon the recovery. This is well and briefly put by the Oregon court in Lane v. Hatfield, 173 Or. 79, 143 P. 2d 230, 234, where the court, dealing with an action brought by the administrator of the estate of a seven year old child, stated that it was the duty of the court "* * * to limit plaintiff's recovery to the amount which the estate of decedent would comprise if decedent had not been killed as here narrated. Her estate would be entitled only to the accumulation of money and other property derived from her services, earnings, investments and savings during the period of her life subsequent to the time when she attained the age of majority."

Prior to the time when the Oregon statute was amended to read as it does at present, the act provided that in all cases, whether the decedent had dependents or otherwise, the measure of recovery was the loss to the decedent's estate. Carlson v. Oregon Short-Line & U. N. Ry. Co., 21 Or. 450, 28 P. 497. After these amendments, the so-called "benefit of the estate rule" was departed from in the case of decedents with dependents, and it was held that the damages recoverable were similar to those allowed under Lord Campbell's acts generally. Nordlund v. Lewis & Clark R. Co., 141 Or. 83, 15 P.2d 980. Even so, recoveries in such cases were limited strictly to the "pecuniary value of the services which the beneficiary under the statute might reasonably have expected from the person on account of whose death the action was brought." Hansen v. Hayes, 175 Or. 358, 154 P.2d 202, 214.

The argument most strongly urged by appellants here is based upon certain language used by the Oregon court in the two cases last cited. There it was said that in determining damages, the jury should be instructed to consider the age, health and physical condition of the decedent, his habits with respect to industry and thrift, his capacity to earn money, his probable length of life, and how many years of that life he would be likely to devote to earning money. Appellants say that most of these criteria cannot be applied in a case where recovery is sought for the death of a there year old child. Here, of course, there are neither spouse nor dependents, and the recovery must be limited by the rule stated in Lane v. Hatfield, supra. Appellants argue that here, in contrast with a case involving death of an adult, the capacity to labor, the earning capacity, the habits of living and expenditures, and of thriftiness, cannot be taken into consideration for proof of them is unavailable. The statute itself, they say, furnishes no tests or standards by which to measure the recovery "for the benefit of the estate of the decedent". The argument is that as applied to an adult the statute has become valid and workable only because the Oregon court by judicial construction has attached to it the tests and standards we have mentioned; but in a case where those standards are not susceptible of proof, the act on its face is so vague and indefinite as to be unenforcible and void and hence lacking in due process.

While no such argument as to the unconstitutionality, or partial unconstitutionality, of the Act was presented in Lane v. Hatfield, supra, yet the Oregon court there found no difficulty in applying a workable standard of proof where the death of a seven year old girl was involved. That case, therefore, demonstrates that there is no basis for the appellant's attack upon the validity of the Oregon act. In the Lane-Hatfield case the life expectancy of the child was proven, and that she was "active, alert and gave promise of a successful and commendable fruition." The proof here was just as adequate. It was stipulated in the pretrial order that young Remillard had a life expectancy of 61 years, and the testimony was that he was a bright, alert, normal and healthy boy. It is true that it was impossible to furnish all of the proof of anticipated earnings and savings which might be furnished in the case of an adult, but that circumstance does not mean that no damages whatever can be recovered, which would be the result were we to accept...