Fisher v. Trester

• Decision Date: 28 March 1930
• Docket Number: 26911
• Citation: 229 N.W. 901,119 Neb. 529
• Parties: MAGGIE FISHER, ADMINISTRATRIX, APPELLEE, v. LEWIS H. TRESTER, APPELLANT
• Court: Nebraska Supreme Court

229 N.W. 901

119 Neb. 529

MAGGIE FISHER, ADMINISTRATRIX, APPELLEE, v. LEWIS H. TRESTER, APPELLANT

No. 26911

Supreme Court of Nebraska

March 28, 1930

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed on condition.

AFFIRMED ON CONDITION.

Syllabus by the Court.

In an action by the personal representative of a deceased child for the benefit of parents, to recover damages for negligently or wrongfully causing the death of such child, the life expectancy of the parents, and not of the child, is to be used as the time element in determining the amount of the damage, where the life expectancy of the child exceeds that of the parents.

The measure of damage in an action by the personal representative of a child, for the benefit of its parents, to recover for wrongfully causing the death of such child, is the present worth in money of the contributions having a general monetary value of which the parents are shown by the evidence with reasonable certainty to have been deprived by the act causing the death, and those contributions that are only probable, or conjectural, may not be included in the amount of such damage.

If the consideration of the life expectancy of one is an issue in an action to recover damage for personal injuries, or wrongful death, the court should instruct the jury to take into account in such consideration, not only mortality tables, if such are in evidence, but also all other facts and circumstances as shown by the evidence and having a bearing thereon.

If the jury are led into returning an excessive verdict by reason of erroneous instructions upon the measure of damage, and a given sum can, with certainty, be said to be as much or more than the excess, judgment may be rendered upon such verdict for its amount minus such given sum, even when the amount of the excess is not definitely ascertainable, if the one in whose favor such verdict was returned voluntarily elects to remit such given sum, and if passion or prejudice did not exist and no error relating to the right of recovery was committed in the trial.

Appeal from District Court, Lancaster County; Stewart, Judge.

Action by Maggie Fisher, administratrix of the estate of Harry Fisher, deceased, against Lewis H. Trester and another. Judgment for plaintiff, and defendant named appeals.

Affirmed on condition of remittitur.

Mockett & Finkelstein and F. B. Baylor, for appellant.

Chambers & Holland, contra.

Heard before GOSS, C. J., DEAN, GOOD and EBERLY, JJ., and RHOADES, SPEAR and TEWELL, District Judges.

OPINION

TEWELL, District Judge.

This action was brought by the plaintiff as administratrix of the estate of her deceased son, Harry Fisher, to recover damages arising from the death of said Harry Fisher, which resulted from injuries sustained in an automobile accident. The action is maintained under the provisions of sections 1382 and 1383, Comp. St. 1922, commonly known as Lord Campbell's Act. The accident occurred on March 31, 1928, at the intersection of Thirty-first street and D street in Lincoln, Nebraska. The side of the rear portion of a Ford truck that was being driven westward on Thirty-first street by one John Ernst was struck by the radiator and left front fender of a Ford sedan that was being driven northward on D street by one Albert Wentzlaff, who was then engaged in his work as an employee of the defendant. Ernst, the driver of the truck, and the deceased, Harry Fisher, were employed by Wilson & Company, and, at the time of the accident, were delivering meats and groceries for their employer. At the time the sedan collided with the truck, Harry Fisher was riding in the rear portion of the open body of the truck and sitting upon a pail of lard. He was thrown from the truck by the force of the collision to the pavement, and a day or two later died from the injuries thereby sustained. The petition specifies certain acts of negligence as being the proximate cause of his death. The answer denies the negligence alleged, and pleads negligence on the part of said Ernst and the deceased. Trial was had to a jury, and from a verdict and judgment for plaintiff in the sum of $ 7,250 the defendant, Lewis H. Trester, prosecutes this appeal. Wilson & Company was made a party defendant merely because of the subrogation existing in its favor under the employers' liability act, and does not join in the appeal.

In his brief the defendant assigns nine errors. Assignments of error Nos. 2, 3, 4 and 5 are directed respectively against instructions Nos. 12, 13, 16 and 19 given by the court, and assignments of error Nos. 6 and 7 are directed at the refusal of the court to give instructions Nos. 2, 3 and 11 requested by the defendant. These assignments, due to their nature, may be conveniently considered in a group, and for a discussion of them instructions Nos. 12, 13, 16 and 19, as given by the court, are copied herein. These four last mentioned instructions are as follows:

"12. The jury are instructed that in the bringing and prosecution of this action the plaintiff, although she is designated as the administratrix of the estate of Harry Fisher, deceased, is acting only for the next of kin of said Harry Fisher, and the recovery, if any, in her favor must represent only the present worth of the probable monetary loss or services during his lifetime which the father and mother have suffered by reason of the death of Harry Fisher. Therefore, in arriving at the amount of such recovery, if any, you are not to take into consideration the fact that the assets of the estate of said Harry Fisher may have been lessened by reason of his death, or that his father and mother may have suffered some loss of inheritance.

"13. The jury are instructed that no legal obligation rested upon Harry Fisher to make contributions in money or services to his father and mother after he reached the age of twenty-one years, so long as the father and mother are reasonably able to earn a livelihood; and whether such contributions would probably have been made must be determined by you from a preponderance of the evidence."

"16. By present worth is meant that sum which if paid at this time will represent the actual value of those contributions in money or services, if any, which you find Harry Fisher would probably have made to his father and mother had his death not occurred."

"19. If you find from the evidence under the instructions of the court that the defendant, through his agent and servant, was guilty of negligence, as charged in plaintiff's petition, which directly and proximately caused or contributed to the death of plaintiff's decedent, and that plaintiff is entitled to a verdict under the evidence and the instructions given you, then the measure of plaintiff's damages would be the pecuniary loss resulting to decedent's father and mother by reason of decedent's death."

In his assignment of error No. 2, the defendant complains of instruction No. 12, set forth above, as fixing the lifetime of the deceased, and not the lifetime of the next of kin, as the period of time to be used in computing the amount of recovery. It is at least susceptible of this meaning. This instruction is an exact copy of instruction No. 1 of those requested by the defendant, with the exception of the court's addition of the phrase "present worth of the probable" and the phrase "or services during his lifetime" at the points in the instruction where those phrases are placed. The deceased is shown to have been 20 years of age at the time of his death; his mother, Maggie Fisher, to have been 51 years of age, and his father, Emmet E. Fisher, to have been 55 years of age. According to the mortality tables introduced in evidence, the life expectancy of deceased was approximately 40 years; that of his mother approximately 19 years, and that of his father approximately 17 years. Under the inheritance laws of this state, the father and mother of the deceased are his sole next of kin, and share equally all of the avails of any recovery herein under the provisions of section 1383, Comp. St. 1922. The life expectancy of the parents, and not of the child, under the facts in this case, is the life expectancy to be used as the time element in computing the amount of damage. To the extent that instruction No. 12 made the life expectancy of the deceased the time element in the rule for the computation of damages when the life expectancy of the deceased exceeded that of the parents, it is erroneous. 17 C. J. 1331, and cases cited in the footnotes; Richmond v. Chicago & W. M. R. Co., 87 Mich. 374, 49 N.W. 621.

In his said assignments of error Nos. 2 to 5 inclusive, the defendant complains of said instruction No. 12, and also of instructions Nos. 13, 16 and 19, as allowing the amount of contributions by the deceased to depend upon mere...