Grand Trunk Western Ry. Co. v. Gilpin
| Decision Date | 15 April 1913 |
| Docket Number | 1,946. |
| Citation | 208 F. 126 |
| Parties | GRAND TRUNK WESTERN RY. CO. v. GILPIN. |
| Court | U.S. Court of Appeals — Seventh Circuit |
[Copyrighted Material Omitted]
George W. Kretzinger, Jr., and L. L. Smith, both of Chicago, Ill for plaintiff in error.
James C. McShane, of Chicago, Ill., for defendant in error.
Before BAKER and KOHLSAAT, Circuit Judges, and WRIGHT, District Judge.
This suit was brought in the trial court by the defendant in error against the plaintiff in error for causing the death of Elizabeth Gilpin, in the state of Michigan, by wrongful act neglect, or default, under the provisions of the statute of that state, called by counsel in their briefs the Death Act (Comp. Laws 1897, Sec. 10,427), in contradistinction to another act described as the Survival Act, the latter named act not being relied upon, because the death for which the action is brought was instantaneous. It was not disputed upon the trial of the cause, and is not here denied, that the death of Elizabeth Gilpin was caused as described in the declaration; the main contention of the plaintiff in error being then and now that under the evidence produced upon the trial, under the Death Act of the state of Michigan, as construed by the court of last resort in that state, the plaintiff below is entitled to recover no damages, or at most merely nominal damages. This contention, with certain ruling of the trial court upon the evidence, and in its charge to the jury, incidental to and arising out of the chief contention mentioned, is the subject for the judgment and decision of this court; the arguments of counsel both oral and in their briefs having been chiefly confined to this subject. The deceased, Elizabeth Gilpin, was 62 years of age when she died, and the beneficiaries in this suit are her husband, aged 62 years, her daughter Gertrude, aged 33 years, who lived together as one family, and a son and two other daughters, who lived apart from the deceased, her husband and daughter Gertrude, and these latter were eliminated from the case by the trial court and were not therefore considered by the jury in the award of damages.
The statute under which the suit is prosecuted provides inter alia that:
'In every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered.'
It was in evidence before the jury that the deceased was in good health; she did housework, sewing, made her daughter's clothes, her own clothes, mended and sewed for her husband, did the buying and general management of the house, and the care for her husband. Over the objection and exception of the defendant, the daughter was permitted to testify that the mother's services to herself and father were worth $40 to $45 a month. The insistence of counsel for plaintiff in error is that the allowance of such evidence was and is reversible error, but we are not so impressed. Such testimony is but the expression of an opinion and, as we think, may be given by any mature person who has had opportunity of observation and experience in household affairs, and such opinions are not in any way conclusive, but advisory merely, to be considered by the jury in the light of their own observation, experience, and common sense, and when thus applied, as we believe, such evidence could not be otherwise than proper.
It has been contended broadly, and argued with great earnestness by counsel for the plaintiff in error, that under the statute of Michigan, as construed by the judicial decisions of that state, the death of Elizabeth Gilpin having been instantaneous, no action for the loss of services of the wife survives to the husband, and damages are not allowable to the adult daughter of the deceased. We recognize and apply the rule, because it is elementary, that the construction placed upon a statute of a state by the court of last resort in such state is binding upon the courts of this jurisdiction.
We have examined, as we believe, with care the citations of counsel in support of this his chief contention in ...
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Goad v. Evans
...supporting the decedent only where evidence as to the reasonable cost of future support is presented. See, e.g., Grand Trunk Western Ry. Co. v. Gilpin (7th Cir.1913), 208 F. 126 (applying Michigan law). In the present case, the only evidence touching on the matter of future support for Stev......
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Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 10205.
...2 Cir., 98 F. 925; Reid v. Nelson, 5 Cir., 154 F.2d 724; Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657; Grand Trunk Western Ry. Co. v. Gilpin, 7 Cir., 208 F. 126; Larsen v. Chicago and North Western Ry. Co., 7 Cir., 171 F.2d 841; Chicago and North Western R. Co. v. Green, 8 Cir., 164 F.......
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Hartford Fire Ins. Co. v. Williams
... ... 363; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; ... Grand Trunk Western Ry. Co. v. Gilpin C. C. A., 208 ... F. 126; City of Oakland ... ...
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...authorities cited in the Lincoln Case, supra, page 205 of 179 N.W.,146 N.W. 405,51 L.R.A.(N.S.) 710, including Grand Trunk Western Railway Co. v. Gilpin (C.C.A.) 208 F. 126, where it was held under the Michigan statute that an action may be maintained by a husband, etc., where death of the ......