Golden v. Spokane & I.E.R. Co.

• Citation: 118 P. 1077,20 Idaho 531
• Parties: THOMAS GOLDEN, Respondent, v. SPOKANE & INLAND EMPIRE RAILROAD CO., a Corporation, Appellant
• Decision Date: 07 November 1911
• Court: United States State Supreme Court of Idaho

118 P. 1077

20 Idaho 531

THOMAS GOLDEN, Respondent, v. SPOKANE & INLAND EMPIRE RAILROAD CO., a Corporation, Appellant

Supreme Court of Idaho

November 7, 1911

DAUGHTER-DEATH BY WRONGFUL ACT-DENIALS ON INFORMATION AND BELIEF-EXCESSIVE JUDGMENT-PASSION AND PREJUDICE-MODIFICATION OF JUDGMENT.

(Syllabus by the court.)

1. Under the provisions of subd. 2 of sec. 4183, Rev. Codes, the following denial on information and belief held sufficient to wit: "And defendant denies that it has any knowledge or information sufficient to form a belief whether or not the said Frances Golden was strong, bright or healthy.... and this defendant therefore denies that said Frances Golden had been strong, bright or healthy," etc., and here follows a disjunctive denial of each of the allegations of said paragraph of the complaint.

2. Under the facts in this case, held that the judgment for $6,000 is excessive.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action to recover damages for wrongfully causing the death of the daughter of plaintiff. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed in the sum of $ 4,535. Costs awarded to the respondent.

W. G Graves, and Whitla & Nelson, for Appellant.

Where a parent seeks to recover damages for loss of services and the like because of the death of a major child, there must be "evidence justifying a reasonable expectation of pecuniary benefit therefrom." (3 Sutherland, Damages, p 283; 2 Sedgwick, Damages, 8th ed., sec. 576; 8 Am. & Eng. Ency. of Law, 2d ed., p. 920; Penn. R. R. Co. v. Adams, 55 Pa. 499; Cooper v. Ry. Co., 66 Mich. 261, 11 Am. St. 482, 33 N.W. 306; St. Louis etc. Co. v. Davis, 55 Ark. 462, 18 S.W. 629; McIntyre v. Railway Co., 47 Barb. 515; Trinity Val. R. Co. v. Stewart (Tex. Civ. App.), 62 S.W. 1085; Andrews v. Boedecker, 17 Ill.App. 213; St. Louis etc. Co. v. Robbins, 57 Ark. 377, 21 S.W. 886; Paulmier v. Railway Co., 34 N.J.L. 151; Carpenter v. Railway Co., 38 Hun, 116; Mexican etc. Ry. Co. v. Finch, 8 Tex. Civ. App. 409, 27 S.W. 1028; Lindstrom v. Nav. Co., 117 F. 170; Hirschkovitz v. Railway Co., 138 F. 438; Reiter-Connolly Co. v. Hamlin, 144 Ala. 192, 40 So. 280; Commercial Club v. Hilliker, 20 Ind.App. 239, 50 N.E. 578; Seeley v. Railway Co., 8 A.D. 402, 40 N.Y.S. 866; Flaherty v. Railway Co. (R. I.), 35 A. 308; San Antonio etc. Co. v. Englehorn, 24 Tex. Civ. App. 324, 62 S.W. 561, 65 S.W. 68; Atchison etc. Co. v. Van Belle, 26 Tex. Civ. App. 511, 64 S.W. 397; Innes v. Milwaukee, 103 Wis. 582, 79 N.W. 783; Burk v. Arcata etc. Ry. Co., 125 Cal. 364, 73 Am. St. 58, 57 P. 1065; Atchison etc. Co. v. Ryan, 62 Kan. 682, 64 P. 603.)

McFarland & McFarland, for Respondent.

It was incumbent upon respondent to make proof of the earning capacity of the deceased. (Peters v. Southern P. Co., 160 Cal. 48, 116 P. 400.)

However, it was not necessary under the pleadings for respondent to prove that Frances Golden had contributed her earnings to plaintiff's support and maintenance, and would have continued to do so, because those facts are fully alleged in the complaint and are not met by any denial in the answer.

The pretended denial of the allegations contained in paragraph 4 of the complaint is insufficient, and does not raise any issue as to those allegations. (Rev. Codes, sec. 4183; State v. Butte City Water Co., 18 Mont. 199, 56 Am. St. 574, 44 P. 966, 32 L. R. A. 697; Rossiter v. Loeber, 18 Mont. 372, 45 P. 560.)

To justify interference by the court with the verdict of the jury it must appear that some rule of law has been violated, or else that the verdict is so excessive or grossly inadequate as to indicate partiality, passion or prejudice in the minds of the jury. (1 Cyc. 375; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; 3 Sedgwick on Damages, 8th ed., 640; Neal v. Phoenix Lumber Co. (Wash.), 117 P. 270.)

The damages awarded to plaintiff in this case were not excessive. (Redfield v. Oakland Con. St. Ry. Co., 110 Cal. 277, 42 P. 822; Bowles v. Rome W. & O. R. Co., 46 Hun, 324; Leiter v. Kinnaire, 68 Ill.App. 558; Missouri P. Ry. Co. v. Lehmberg, 75 Tex. 61, 12 S.W. 838; Lyons v. Second Ave. R. Co., 89 Hun, 374, 35 N.Y.S. 372.)

Should this court determine that the damages are excessive, it has ample authority, under the statutes to modify the judgment and thereby save delay, costs, annoyance and expense to both parties. (Rev. Codes Idaho, sec. 3818; Maloney v. Winston Bros. Co., 18 Idaho 740, 757, 111 P. 1086; 4 Thompson on Negligence, 7360.)

SULLIVAN, J. Ailshie, J., concurs. STEWART, C. J., Dissenting.

OPINION

SULLIVAN, J.

This action was brought by the respondent to recover damages from the appellant for wrongfully causing the death of his daughter, Frances Golden. The daughter was injured in a railroad wreck on July 31, 1909, and died from such injuries two days later. The case of Golden v. Spokane & Inland Empire Ry. Co., decided at this term of this court, involved the death of the seven year old son of the plaintiff and arose out of the same railway accident and is reported in ante, 20 Idaho 526, 118 P. 1076.

The case was tried by the court with a jury and a verdict was rendered for $ 6,535, which includes $ 535, the cost of medical and other attendance and the burial of said Frances Golden, and judgment was entered on said verdict for said amount. A motion for a new trial was denied and the appeal is from the judgment and order denying a new trial.

It is first contended by appellant that the evidence is insufficient to justify the verdict, in that it fails to show that the plaintiff ever received from his daughter Frances Golden any part of her earnings, or that he did receive or would receive any pecuniary aid or assistance or support of any kind from said daughter. It is contended, however, by counsel for respondent that the allegations involving said question were contained in the complaint and not denied by the appellant and were, therefore, admitted. The allegations in the complaint including said matter are as follows:

"That at all of the times herein mentioned, plaintiff was and is a married man, the head of a family, and the father and sole surviving parent and heir at law of Frances Golden, an unmarried daughter of the age of about 36 years, who, up to the time of sustaining the injuries hereinafter mentioned, resided with plaintiff at his home in the said city of Spokane; that at all times during her life up to and including the time she sustained said injuries, said Frances Golden had been strong, bright and healthy, and in all ways and respects a companion and comfort to plaintiff, and for a long time immediately prior to sustaining said injuries was a trained nurse, and, as such, capable of earning and did earn by her physical and mental labors and energies large sums of money, which she contributed to plaintiff's maintenance and support, and would have continued so to do, thereby adding greatly to the wealth, welfare, comfort, society and happiness of plaintiff, but for the careless and negligent acts of defendant hereinafter alleged."

The defendant's denials of many of the allegations contained in said paragraph 4 of the complaint are as follows:

"And defendant denies that it has any knowledge or information sufficient to form a belief whether or not the said Frances Golden was strong, bright, or healthy, or whether she was in any way or respect a companion of and comfort to plaintiff, or whether or not she was a trained nurse, or whether or not she was capable of earning, or did earn, by her physical or mental labors or energies, large sums of money, or any sums of money, or whether or not she contributed to plaintiff's maintenance or support, or whether she would have continued to do so, or whether she would have added greatly, or at all, to the health, welfare, comfort, society, or happiness, of the plaintiff, and this defendant therefore denies that Frances Golden had been strong, bright or healthy, and defendant further denies that she was in any way or respect a companion or comfort to the plaintiff, and defendant further denies that she has been for a long time, or at all, a trained nurse, and defendant further denies that she was capable of earning, or did earn, large sums of money, and defendant further denies that she contributed large sums of money, or any sums of money whatever, to the maintenance or support of plaintiff, and defendant further denies that she would have continued so to do, and defendant likewise denies that she would have added greatly, or at all, to the health, welfare, comfort, society, or happiness of the plaintiff."

It is contended that as the defendant only denies that it has knowledge or information sufficient to form a belief of the truth of said allegations, that that is not a sufficient denial of said allegations under the provisions of subd. 2 of sec. 4183, Rev. Codes, which subdivision is as follows:

"The answer of the defendant shall contain: . . . .

"2. A statement of any new matter constituting a defense or counterclaim. If the complaint be verified, the denial of each allegation controverted must be specific, and be made positively, or according to the information and belief of the defendant. If the defendant has no information or belief upon the subject, sufficient to enable him to answer an allegation of the complaint, he may so state in his answer, and place his denial on that ground. If the complaint be not verified, a general denial is sufficient, but only puts in issue the material allegations of the complaint."

That section provides that the denial must be made positively "or according to the information and belief of the defendant," and if the defendant has no information or belief upon the...