Gilman v. C.W. Dart Hardware Co.

Decision Date17 October 1910
Citation111 P. 550,42 Mont. 96
PartiesGILMAN v. C. W. DART HARDWARE CO.
CourtMontana Supreme Court

Appeal from District Court, Beaverhead County; Lew L. Callaway Judge.

Action by John M. Gilman against the C. W. Dart Hardware Company. Judgment for the plaintiff, and the defendant appeals. Affirmed.

W. S Barbour and Lamb & Walker, for appellant.

Joseph C. Smith, for respondent.

SMITH J.

The plaintiff in this action is the father of J. L. Gilman, who at the time of his death was about 18 years of age. He was killed through the alleged negligence of the defendant corporation and its managing agent, one Connolly, in putting him, its employé, to work in a trench without warning as to its dangerous condition. The trial resulted in a verdict for $3,000 in favor of the plaintiff. Judgment was entered on the verdict, from which judgment and an order denying a new trial the defendant has appealed.

1. It is contended that the complaint does not state facts sufficient to constitute a cause of action. Our examination thereof, however, leads to the conclusion that the pleading is not open to the criticism advanced in the brief of counsel.

2. It is also contended that the evidence is insufficient to sustain a finding that the deceased was in the employ of the defendant at the time of his death. We have read the evidence. In our view it was sufficient to warrant the court in submitting the question to the jury and overruling the motion for a new trial so far as that point is concerned.

3. The court charged the jury, in effect, that the plaintiff was not limited in his right of recovery to damages sustained by him by reason of loss of services of his son from the time of his death to the day of his majority, but that he might "recover for pecuniary benefits reasonably to be expected to be received from the deceased after his majority." We think there was no error in so charging. Our statutes (Rev. Codes) relating to the right of recovery for death by wrongful act read as follows:

"Sec 6485. A father, or in case of his death, or desertion of his family, the mother may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person who is responsible for his conduct, also against such other person.
"Sec. 6486. When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person.

In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."

It will be noted that section 6485 relates to the injury or death of a minor child, while section 6486 refers to the death of a person not a minor, and the latter section expressly provides that in both cases such damages may be given as under all the circumstances of the case may be just. There is no limitation upon the amount to be recovered in either case, except that it shall be a just award under the circumstances. It is true that the right of a father to the earnings of his child is limited to the period prior to majority, but it does not necessarily follow that the pecuniary loss sustained in the death of a child is limited to what the child will earn before he becomes of age. On the contrary, the circumstances may be such as to indicate that such loss will be much greater. It is provided by section 3751 of the Revised Codes that it is the duty of the children of any poor person who is unable to maintain himself by work to maintain such person to the extent of their ability.

The case of Dean v. Oregon R. & N. Co., 38 Wash. 565, 80 P. 842, is relied on by the appellant. That case, however, is not, in its facts, similar to the instant one. The court said: "But it appearing that he [the deceased boy, 18 years old] had abandoned the home of his parents, and had sent them absolutely nothing since said abandonment, we do not think it a fair presumption to be indulged that his conduct for the few years preceding his death would all be changed, and that he would soon be found returning home, or contributing his wages to his parents. This was a matter requiring proof." We do not understand from this decision that the Supreme Court of Washington decided the question we are considering. It was contended by the defendant that the plaintiff had "shown no damages entitling him to any recovery."

In the case of Agricultural & M. Association v. State, use of Carty, 71 Md. 86, 18 A. 37, 17 Am. St. Rep. 507, also cited by appellant's counsel, the Court of Appeals of Maryland held, as we understand the decision, that the evidence was insufficient to warrant the conclusion that the minor son would have been of any pecuniary benefit to his father after he attained his majority.

The New York Court of Appeals, in Birkett v. Knickerbocker Ice Co., 110 N.Y. 504, 18 N.E. 108, said: "The jury were not bound, in estimating the compensation to be made for the death of the child, to confine their considerations to her minority. It is true that the plaintiff, as father, could command her services only during her minority. But in certain contingencies she might, after her majority, owe him the duty of support, which could, by legal proceedings, be enforced; and after that event she might, in many ways, be of great pecuniary benefit to him. In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance, and they were not in this case bound to assume that no pecuniary benefits could come to the next of kin from this child after her majority."

The Supreme Court of Wisconsin, in Thompson v. Johnston Bros. Co., 86 Wis. 576, 57 N.W. 298, said: "There can be no doubt that in such a case the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of the life, even beyond his majority. That depended upon her pecuniary circumstances, and the evidence admitted related directly to such circumstances."

The United States Circuit Court of Appeals, Fifth Circuit, in the case of Texas & P. Ry. Co. v. Wilder, 92 F. 953, 35 C. C. A. 105, said: "There is no merit in the specifications of error, which are founded upon the false assumption that the damages in the cause were restricted to the benefits which the plaintiff might have derived from the services of their son up to the time of his majority. We are clearly of opinion that the damages should not have been so restricted, and that in this cause it was proper for the trial judge to charge the jury that, in assessing the damages, they had a right to consider what reasonable expectations the plaintiffs had of pecuniary benefits to be received from their son after he should have reached the age of majority. *** In some jurisdictions the parent has, by statute, an action against the child for support. But, apart from any such statute, there certainly is an indisputable natural obligation on the part of the child to support his necessitous parents. The plain dictate of nature requires a child, grown up to manhood, to relieve the wants of...

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