Eichorn v. New Orleans & C. R., Light & Power Co.

• Decision Date: 10 April 1905
• Docket Number: 15,408
• Citation: 114 La. 712,38 So. 526
• Parties: EICHORN v. NEW ORLEANS & C. R., LIGHT & POWER CO. et al. *
• Court: Louisiana Supreme Court

38 So. 526

114 La. 712

EICHORN v. NEW ORLEANS & C. R., LIGHT & POWER CO. et al. *

No. 15,408

Supreme Court of Louisiana

April 10, 1905

OPINION On Rehearing.

This action is brought by the plaintiff, as tutrix of the minor children, issue of her marriage with Ludwig Eichorn, who, on the 29th of January, 1902, was crushed between two cars of the New Orleans & Carrollton Railroad, Light & Power Company and died two days afterwards. The plaintiff brought suit in her individual right as widow of the deceased, claiming $ 50,000 against the company named as damages for his death. A verdict in her favor was found by the jury which tried the case for $ 25,000, and for this amount judgment was rendered. On appeal the judgment was reduced to $ 10,000. 112 La. 236 36 So. 335. On rehearing we were informed by defendant's counsel that after the verdict in the case had been returned a suit had been brought (the present suit) by the plaintiff as tutrix of her minor children claiming damages in the latter's favor for $ 50,000 for their father's death. It was urged that the judgment which we had rendered was excessive unless it should be construed as covering also the damages sustained by the minors. The rehearing asked for was refused, but in the opinion given on the application it was stated that when the widow sued alone a judgment in her favor exhausted the cause of action for the damages which the deceased could have recovered had he survived his injuries leaving to the minors only a right of action to recover the pecuniary loss sustained by them by reason of the father's death.

In the petition in the present suit $ 5,000 of the $ 50,000 claimed are claimed for the sufferings of the deceased occasioned by the injury and $ 45,000 for the loss of his comfort, society, and support to his helpless minor children. It is averred in the petition that Eichorn at the time of his injury was in good health; that he had a life expectancy of 40 years; and that his earnings were about $ 3,000 a year.

On the trial in the district court it was announced by the defendant's counsel that he considered that all questions of responsibility for the accident had been determined against the defendant by the decision of the Supreme Court in the first suit, and that he did not intend to offer any evidence on the question of the responsibility for the accident vel non; that that fact was not disputed in this case. The jury, by a vote of 10 to 2, returned a verdict for $ 20,000 in favor of the plaintiff, and defendant appealed.

In plaintiff's brief it is said:

"Eichorn at the time of his death was 39 years old. His life expectancy was 28.9 years. He was earning by his skill, labor and industry $ 3,000 a year. If he had lived that long, and continued to earn that much, his earnings would have amounted to $ 86,700. His business was contractor and manufacturer of cornice and galvanized iron work. It is probable, with his industry and energy and application to business, that his income would increase. He left seven minor children -- Lucille, 19 years of age, Amelia, 18, Wilhelmina, 16, Louis, 15, August, 13, Irene, 8, Gustave, 7 -- four girls and three boys."

"Girls, in this community, are always supported by their father until they marry a man able to support them. Boys are supported until they have become of age, or acquire a trade or occupation by which they can earn a living. It is clear that a boy twenty years old, with lucrative employment, would not suffer as great a pecuniary loss by the death of his father as an infant of tender years. In this case the oldest boy was fifteen years old; the next thirteen; the youngest, seven. It would take $ 60,000, invested at 5 per cent., to yield an income of $ 3,000 a year."

"If we estimate the pecuniary value of a man's life to his family, we must take his earnings and his age or his life expectancy as the basis of the calculation."

Counsel has selected a number of the judgments rendered in this court in personal injury cases, and applied the rule which he advances as the test, and compared them with what would be the result of the application of the same rule in the present case.

He criticizes the moderation or conservatism of courts which render small judgments, declaring that they tend to cause corporations and employers to relax their care and vigilance for the safety of human life and the protection from bodily injury, and he presents tables going to establish that where large verdicts are returned there are much fewer cases of injuries and death than where they are small. He urges that life expectancy tables should be used by the courts as factors in determining the pecuniary value of a man's life to his children; referring the court to Lincoln v. Power, 151 U.S. 441, 14 S.Ct. 387, 38 L.Ed. 224, Ritter v. Mutual Life Ins. Co., 169 U.S. 152, 18 S.Ct. 300, 42 L.Ed. 693, and Vicksburg R. R. v. Putnam, 118 U.S. 554, 7 S.Ct. 1, 30 L.Ed. 257.

The defendant's counsel, in their brief, say:

"Plaintiff makes a strenuous argument to establish as a basis for the fixing of the damages suffered by the children the theory that a large sum ought to be allowed them -- a sum which at interest would be equivalent to the earning capacity of the man at the time of his death -- this allowance to extend over his probable period of life as shown by life expectancy tables, allowing nothing for accident, bad health, or death. It is not reasonable to adopt any such basis as a rule for computing damages. That rule has been commented upon in many cases, but it has been usual, in using these tables before a jury, to direct them to consider all the contingencies to which life is liable, and in no case has it ever been held that the table should be accepted absolutely, and an annuity paid out on capitalization. See, among the cases, Railroad v. Putnam, 118 U.S. 554, 7 S.Ct. 1, 30 L.Ed. 257; St. Louis Railway Co. v. Needham, 52 F. 376, 3 C.C.A. 129; Cheatham v. Red River Line (D. C.) 56 F. 250; McGary v. City, 4 La.Ann. 440; Downing v. Railroad Co., 104 La. 523, 29 So. 207.

In the case at bar the life tables were used before the jury, and no instructions were given by the judge to regulate their consideration, or to influence the jury away from the argument which was so strenuously built upon those tables."

Referring to the cases cited by the plaintiff, defendant says:

"Inasmuch as this court decided in the Rice Case, 51 La.Ann. 114, 24 So. 791, and it seems to be the accepted jurisprudence in this state, that the allowance for damages will be determined in each case without being controlled by allowances in other cases, having regard, however, for uniformity as far as possible, it would seem proper to make comparisons between previous allowances by this court made to widows and children when presented in one suit. It must be fair to consider what had been allowed in previous cases, and the division of the matter into two suits ought not to affect the total amount which should be allowed. Any other methods put a premium on litigation, and would, at counsel's whim, permit a separate suit for each beneficiary."

The deceased owned at his death real estate part of which was used for residence purposes and part as a manufacturing establishment known as the Louisiana Cornice Works. He owned the establishment and carried it on individually. He had general control and management of it, taking and carrying out contracts. The business continued after his death, the widow taking charge in place of her husband. It seems to have been successfully carried on by her, though she testified that she could not conduct it as well as her husband had done.

During the husband's life he maintained his family through that business, but he did not accumulate money, as he lived liberally.

The widow valued the real estate which he left and which was still owned by the family at at least $ 10,000. He left a life policy for $ 2,000, which she collected. The extent of her husband's earnings rests upon her own testimony which is of a very indefinite character. She estimates that he earned about $ 3,000 net in a year, but the parties kept practically no books, and she produced no vouchers. During her husband's lifetime the children, when young, were sent to a German pay school, but as they became older they went to the public school. None of them had graduated. None had employment other than the oldest son, who was learning the business of the establishment by service in it. None of the children were married. The oldest child had become of age...