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

• Decision Date: 06 November 1911
• Citation: 20 Idaho 526,118 P. 1076
• Court: Idaho Supreme Court
• Parties: THOMAS GOLDEN, Respondent, v. SPOKANE & INLAND EMPIRE RAILROAD CO., a Corporation, Appellant

118 P. 1076

20 Idaho 526

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

Supreme Court of Idaho

November 6, 1911

CHILD-DEATH BY WRONGFUL ACT-MEASURE OF DAMAGES-DISCRETION OF JURY-PASSION AND PREJUDICE-INSTRUCTIONS.

(Syllabus by the court.)

1. In an action by the father for the wrongful death of a son seven years of age, caused by collision on the railway, where it is admitted that the death occurred through the negligence and carelessness of the servants of the defendant, the value of the child's services to the father during the period of his minority should be ascertained by the jury from the evidence introduced and by using their own judgment, common sense and discretion, as an estimate of such services must of necessity to a considerable extent be a matter of opinion.

2. In such cases the parent is entitled to recover more than nominal damages.

3. A verdict of $4,000 for the death of a bright, healthy, active boy of seven years of age is not excessive under the facts of this case.

4. While it was error for the court to instruct the jury that they should find for the plaintiff any sum that he might reasonably expect to receive from such son after coming of age, "if any such is shown by the evidence," when no such sum is claimed in the complaint and no evidence whatever had been introduced upon that question, held not reversible error.

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

Action to recover damages for the wrongful killing of plaintiff's minor son. Judgment for plaintiff. Affirmed.

Judgment affirmed with costs of this appeal in favor of respondent.

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

Damages should have been limited to the expectation of the life of the plaintiff. (Louisville etc. Co. v. Wright, 134 Ind. 509, 34 N.E. 314; Rouse v. Detroit etc. Ry., 128 Mich. 149, 87 N.W. 68, 70; Jones v. McMillan, 129 Mich. 86, 88 N.W. 207; Fidelity etc. Co. v. Buzzard, 69 Kan. 330, 76 P. 832.)

The amount awarded is grossly excessive. (Little Rock etc Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; Pennsylvania Co. v. Lilly, 73 Ind. 252; Mayor etc. v. McLain, 67 Miss. 4, 6 So. 774; Parsons v Missouri P. Ry. Co., 94 Mo. 286, 6 S.W. 464; Lehman v. Brooklyn, 29 Barb. 234; Riley v. Transit Co., 10 Utah 428, 37 P. 681; Dinnihan v. Beach Co., 8 A.D. 509, 40 N.Y.S. 764; Hively v. Webster County, 117 Iowa 672, 91 N.W. 1041; Con. Trac. Co. v. Graham, 62 N.J.L. 90, 40 A. 773; Graham v. Traction Co., 64 N.J.L. 10, 44 A. 964; Schaffer v. Transfer Co., 29 A.D. 459, 51 N.Y.S. 1092; Connaughton v. Publishing Co., 73 A.D. 316, 76 N.Y.S. 755; Fox v. Railway Co., 118 Cal. 55, 62 Am. St. 216, 50 P. 25.)

McFarland & McFarland, for Respondent.

Courts do not award damages for the death of a person except in cases where such death was wrongfully caused, and a person or corporation wrongfully causing the death of an individual should be required to pay in damages more than a nominal sum. The damages awarded by the jury in the case at bar are not excessive. (Galveston H. & N. Ry. Co. v. Olds (Tex. Civ. App.), 112 S.W. 787; Louisville & N. R. Co. v. Kimble's Admx., 140 Ky. 759, 131 S.W. 790; Rice v. Crescent City R. Co., 51 La. Ann. 108, 24 So. 791; Taylor B. & H. R. Co. v. Warner (Tex. Civ. App.), 31 S.W. 66; Chicago City Ry. Co. v. Strong, 230 Ill. 58, 82 N.E. 335; Myers v. San Francisco, 42 Cal. 215; Houghkirk v. Canal Co., 28 Hun, 407; Austin Rapid Transit Ry. Co. v. Cullen (Tex. Civ. App.), 29 S.W. 256, 30 S.W. 578; Abby v. Wood, 43 Wash. 379, 86 P. 558.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages for wrongfully causing the death of Darrell Golden, the minor seven year old son of the respondent. The death was caused by a wreck on the railroad of the appellant. The liability of appellant for the death of said child is admitted, or is not disputed, and the only question involved is the amount of damages that the plaintiff is entitled to recover in this action.

The cause was tried by the court with a jury and the jury returned a verdict in favor of the plaintiff for the sum of $ 4,145, $ 145 of which was for the expenses of the burial of the child, and judgment was entered for that amount on said verdict. A motion for a new trial was denied and the appeal is from the judgment and order denying a new trial.

Several errors are assigned, but those upon which the appellant relies are to the effect that the evidence is insufficient to support the verdict; that the verdict is excessive and was given under the influence of passion and prejudice, and that the court erred in giving instruction No. 3.

As to the first assignment of error, the evidence shows that the child in question was about seven years of age; that the plaintiff, the father of the child, was about 61 years of age at the date of the death of the child, and that his life expectancy, according to the standard mortuary tables, was 12.26 years; that the child was a bright, healthy, active child and the pet of the family; that the plaintiff had fourteen children, twelve of whom are still living. That being the substance of the evidence, while the plaintiff admits its liability, it claims that the judgment is excessive. It is urged that as the plantiff had so many children older than the one in question, if plaintiff required comfort and support from his children in his declining years, the burden would fall upon the older children rather than on this young child. It is also contended that according to the plaintiff's life expectancy, as established by standard tables, he would live only 12.26 years. That added to the age of the boy would make him about nineteen years of age when the father would die, and it is contended that the child could not possibly earn for his father during those twelve years $ 4,000 over and above the necessary expenses of caring for the child.

In an action for the wrongful death of a child, it is well recognized that the actual benefit that the parent might receive from the services of the child during his minority cannot be specifically ascertained to the dollar by the jury, and it is a well-recognized rule that the jury should...