D'Angelo v. Rutland Ry., Light & Power Co.

• Decision Date: 06 January 1927
• Citation: 135 A. 598
• Court: Vermont Supreme Court
• Parties: D'ANGELO v. RUTLAND RY., LIGHT & POWER CO.

135 A. 598

D'ANGELO

v. RUTLAND RY., LIGHT & POWER CO.

Supreme Court of Vermont. Rutland.

Jan. 6, 1927.

Exceptions from Rutland County Court; Warner A. Graham, Judge.

Action by Nicollna M. Pietro D'Angelo, administratrix of the estate of Baffaele Pietro D'Angelo, against the Rutland Railway Light & Power Company. Verdict for plaintiff, and defendant brings exceptions. Judgment affirmed.

Argued before WATSON, a J., and POWERS, SLACK, FISH, and MOULTON, JJ.

Charles E. Novak and Lawrence, Stafford & Bloomer, all of Rutland, for plaintiff.

Fen ton, Wing & Morse, of Rutland, for defendant.

MOULTON, J. The deceased, a minor aged 18 years and 9 months, met his death by coming in contact with a wire of the defendant company, carrying a high voltage current of electricity, which fell upon him while he was engaged in his work as an employee of the city of Rutland. Suit was brought by his mother, as administratrix, for her benefit as his next of kin, under G. L. 3314, 3315. The verdict was for the plaintiff, and the case comes to this court upon exceptions by the defendant.

The exceptions relied upon relate only to the question of damages. The point was raised by an exception to the admission of evidence; by an exception to the failure of the court to charge as requested; and by an exception to the charge as given. It is not necessary to discuss the exceptions separately. The question is the same in each instance.

By the rule adopted by the trial court, the plaintiff was held entitled to recover for the loss of her reasonable expectation of pecuniary advantage from the continuance of the life of the deceased; that, if her reasonable expectation would terminate upon the deceased reaching his majority, if he lived that long, then that would be the limit off her recovery. But, if she had a reasonable expectation of pecuniary benefit from the continuance of her son's life beyond the period of his minority, then she might recover for such further expectation.

The defendant's position is that the recovery should have been limited to the actual pecuniary, injury sustained by the plaintiff by reason of the loss of her son's services from the time of his death to that time when, If he had lived, he would have attained the age of 21 years, she being by law entitled to such services; and that, beyond that point, the chance of survivorship, the son's ability or willingness to contribute to her benefit, by money or otherwise, are matters of conjecture too vague to enter into an estimate of damages.

The statute under which this action has been brought is practically identical with the statute 9 and 10 Vict c. 93, commonly known as Lord Campbell's Act. Legg, Adm'r, v. Britton, 64 Vt. 652, 658. 659, 24 A. 1016. The damages recoverable thereunder are for pecuniary loss or injury only, and the destruction of a reasonable expectation by the next of kin of deriving some pecuniary advantage or benefit from the continuance of the life of the deceased will sustain the action. Bpyden v. Fitchburg R. R. Co., 70 Vt. 125, 127, 39 A. 771; Lazelle v. Newfane, 70 Vt. 440, 443, 444, 41 A.' 511; Legg, Adm'r, v. Britton, supra; Eames v. Brattleboro, 54 Vt. 471, 477; Needham, Adm'r, v. G. T. R. Co., 38 Vt. 291, 305; Franklin v. S. E. Ry. Co., 3 H. & N. 211, 214, 8 Eng. Rul. Cas. 419. 421, 422.

Upon the question here in issue the authorities are conllicting. Many jurisdictions hold that, where the deceased is a minor, the measure of damages is the pecuniary loss which the parent sustains by reason of being deprived of the child's services during minority, less the child's proper support and maintenance; and that, beyond the period of minority, the chances of the ability and willingness of the child to support the parent are matters too vague, uncertain, and remote to enter into an estimate of damages merely compensatory. Some of the cases are not in point because of the wording of the statute under which the decisions are made, but among those construing a similar statute to ours we note the following: Hopkins v. Knapp & Spalding Co., 92 Iowa, 328, 60 N. W. 653; Beach v. City of St. Joseph, 192 Mich. 296, 158 N. W. 1045; Leahy v Davis,' 121 Mo. 227, 25 S. W. 941; Davis, Director General of Railroads, v. McCullers, 126 Miss. 521, SO So. 158; Schnable v. Providence Public Market, 24 R. I. 477, 53 A. 634; Agricultural Ass'n v. State, 71 Md. 86, 18 A. 37, 17 Am. St. Rep. 507; Scherer v. Schlaberg, 18 N. D. 421, 122 N. W. 1000, 24 L. R. A. (N. S.) 520; Ry. Co. v. Barker. Ark. 350, 34 Am. Rep. 44; Pere Marquette R. Co. v. Chadwick, 65 Ind. App. 95, 115 N. E. 678.

But the weight of authority is otherwise, and holds to the doctrine that in such cases the damages are not confined to the loss of services during the minority of the deceased child, but may, upon a proper showing, include damages for the loss of reasonable expectation of pecuniary benefit, accruing after minority. Pierce v. Conners, 20 Colo. 178, 37 P. 721, 46 Am. St. Rep. 279; Holt v. Spokane, etc., Ry. Co., 3 Idaho, 703, 35 P. 39; Grffim v. Fredonia Brick Co., 90 Kan. 375, 133 P. 574; Gilman v. Hardware Co., 42 Mont. 90, 111 P. 550; Draper v. Tucker, 69 Neb. 434, 95 N. W. 1026; Southwestern Portland Cement Co. v. Bustillos (Tex. Civ. App.) 216 S. W. 268; Beaman v. Mining Co., 23 Utah, 139, 63 P. 631; Colonial Coal, etc., Co. v. Gass, 114 Va. 24, 75 S. E. 775; Comer v. City of Winston-Salem, 178 N. C. 383, 100 S. E. 619; Pacific Gas Co. v. Almanzo, 22 Ariz. 431, 198 P. 457; Bottum v. Kamen, 43 S. D. 498, 180 N. W. 948; McGonegle v. Wisconsin Gas Co., 178 Wis. 594, 190 N. W. 471; Curran v. Lewiston, etc., R. Co., 112 Me. 96, 90 A. 973, 974; North Jersey St. Ry. Co. v. Morhart, 64 N. J. Law, 236, 45 A. 812; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108, 110; Beaver v. Chicago & E. I. R. Co., 199 Ill. 34, 65 N. E. 144, 145. And see cases cited in note, 48 L. R. A. (N. S.) 687.

In Bond v. United Railroads, 159 Cal. 270, 27, 113 P. 366. 369, 48 L. R. A. (N. S.) 687, (95 (Ann. Cas. 1912C, 50) the doctrine is thus stated:

"It would seem to follow from this rule absolutely limiting the damages in every case to the pecuniary loss occasioned by the death, and upon a consideration of that justice which the statute itself invokes, that this pecuniary loss should be extended to, and should include, all pecuniary loss of every kind which the circumstances of the particular case establish with reasonable certainty will be suffered by the beneficiary of the statute in the future, because of the death of the victim. Nothing less would be a just compensation for the injury, and anything more, or anything in the realm of improbability, conjecture, or mere fancy, would be beyond the purview of the statute, and unjust to the defendant. In many cases where the minor is near majority, the certainty of pecuniary loss from his death, to the parent, accruing after his minority, would be as great as the certainty of such loss during minority, and the expectation of benefits...