Globe Furniture Co. v. Gately

• Citation: 279 F. 1005
• Decision Date: 03 April 1922
• Docket Number: 3632.
• Parties: GLOBE FURNITURE CO. v. GATELY et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

279 F. 1005

GLOBE FURNITURE CO. v. GATELY et al.

No. 3632.

United States Court of Appeals, District of Columbia.

April 3, 1922

Submitted February 9, 1922.

Appeal from the Supreme Court of the District of Columbia.

Milton W. King, of Washington, D.C., for appellant.

A. L Newmyer, of Washington, D.C., for appellees.

SMYTH Chief Justice.

The Gatelys, as administrators of the estate of their deceased son, brought this action against the Globe Furniture Company a corporation, to recover damages which they said they had sustained by reason of the death of their son through the negligence of an employe of the Furniture Company.

There was testimony that as the boy, who was about 8 or 9 years of age, was crossing from the east to the west side of Twenty-Third street, Washington, a large furniture truck belonging to the defendant and driven by one of its employes, approached at a high rate of speed along the left, or wrong, side of the street, in violation of traffic regulations, and without any warning, knocked the boy down, inflicting the injuries which afterwards caused his death; that the boy could easily have been seen by the driver in time to have saved him, if he, the driver, had been looking, but that the driver did nothing to stop the truck or reduce its speed before the collision took place; and that the truck was going so rapidly that, after it hit the boy, it did not stop until it struck a tree near the curb. The verdict and judgment were for the plaintiffs, and the Furniture Company, alleging error, brings the case here for our review. Many errors are assigned, but they are grouped under four heads in appellant's brief, and as thus grouped we shall consider them.

The father was asked if he had any means except his earnings, and he replied in the negative. No objection was made to the question. There was a motion to strike the answer, which was overruled. But the defendant did not except. Error cannot be predicated on the action of the court in admitting testimony, where no exception has been reserved. Allis v. United States, 155 U.S. 117, 122, 15 Sup.Ct. 36, 39 L.Ed. 91; Queenan v. Oklahoma, 190 U.S. 548, 23 Sup.Ct. 762, 47 L.Ed. 1175; Budd v. United States, 48 App.D.C. 332. Other questions having the same purport were asked and answered. No objection was interposed as to any of the questions, but after they had been answered a motion was made to strike out the answers. This practice is not to be approved. Objection should be made to the question when asked, unless counsel does not have an opportunity to make it before the answer comes. However, since the answer to the first question is properly in the record, no prejudicial error was committed in refusing to eliminate the other answers, as they were only cumulative. If there was any vice in the first one, the harm done by it could not be extracted by striking out the others. Besides, the testimony was competent in a case of this character as tending to aid the jury in determining the reasonable probability of the boy's contributing to the support of his parents, the plaintiffs, if he had not been killed. It was so held by this court in a well-considered case (United States Electric Co. v. Sullivan, 22 App.D.C. 115), in which many decisions are cited in support of the conclusion reached. This case has not been overruled or modified, so far as we are advised, and it is therefore decisive of the point in hand.

In the course of its instructions, on the measure of damages, the court, at the request of the plaintiffs, told the jury that in determining the amount of the plaintiffs' damages, they should take into consideration the age and health of the deceased, his capacity for labor, the probability of his living to the age of majority, and that the amount of their verdict should be measured 'by such sum as the evidence may show the father would probably have received from decedent irrespective of whether or not the son was legally required to make such provision,' less the usual and reasonable expense of caring for and rearing him. Counsel for defendant objected to the prayer as a whole. In this court their only criticism is directed to the words 'be measured by such sum as the evidence may show the father would probably have received from decedent. ' Many elements in the instruction were undoubtedly proper; for instance, that part of it which stated that the jury should award the plaintiffs whatever they thought was 'a fair compensation for the pecuniary or money value that the services of the decedent would have been to his next of kin. ' Yet, as we have said, the exception went to the whole instruction. ...