Hindry v. Holt

• Decision Date: 20 December 1897
• Citation: 51 P. 1002,24 Colo. 464
• Parties: HINDRY v. HOLT.
• Court: Colorado Supreme Court

51 P. 1002

24 Colo. 464

HINDRY v. HOLT.

Supreme Court of Colorado

December 20, 1897

Appeal from district court, Arapahoe county.

Action by Catherine M. Holt, by guardian ad litem, against J. B Hindry. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action brought in behalf of Catherine M. Holt by C.J Burns, her guardian ad litem, against J. B. Hindry, to recover damages for the death of Thomas Holt, her uncle. The right to such recovery is predicated upon the following facts: On October 6, 1893, Thomas Holt, an unmarried man, 38 years of age, was employed by J. B. Hindry, the defendant, as a common laborer, and while engaged under his direction in excavating a sewer trench in North Denver the ground caved in upon him, causing his death. He died intestate, leaving surviving him Catherine M. Holt, a daughter of his deceased brother, an infant five years of age, as his only heir. From November, 1890, to September, 1892, he resided in the city of Denver with Catherine and her mother, and contributed almost entirely to her support, furnished her clothing, and the provisions and necessaries for the family. In September 1892, plaintiff and her mother moved away from the city of Denver, and from that time until his death he continued to support plaintiff, sending money to her mother for that purpose; and, if he had survived, he would have continued to support, educate, and maintain her. The cause was tried to a jury, and resulted in a verdict and judgment for $4,500. To reverse this judgment, defendant, Hindry, prosecutes this appeal.

George W. Miller, Daniel Sayer, and John H. Reddin, for appellant.

Caypless & Brown, for appellee.

GODDARD J. (after stating the facts).

Among the many objections raised by the specifications of error, we deem it necessary to notice the one only which challenges the right of appellee to maintain the action, since, in our opinion, this question is decisive of the case. No right of action for damages resulting from death through wrongful act or negligence was given by the common law, and such right exists only by virtue of our statute. Gen. Laws 1877, p. 343; Mills' Ann. St. c. 37. This statute gives the right of action, and designates the party or parties who may sue for recovery of damages in cases of this kind, and classifies them as follows: First, husband or wife of deceased; second if there be no husband or wife, or he or she fails to sue within one year after such death, then by the heir or heirs of deceased; third, if such deceased be a minor, or unmarried, then by the father or mother, who may join in the suit, and each shall have an equal interest in the judgment, or, if either of them be dead, then by the survivor. Though similar in its general features to the original English statute (9 & 10 Vict. c. 93), known as 'Lord Campbell's Act,' and the statutes on this subject generally adopted in this country, it will be seen that our act differs from all of them in its designation of the parties that may sue. Most of them provide that the action may be brought by the personal representatives of the deceased, for the benefit of his widow and next of kin, while by the terms of our statute the right to sue is vested, in the first instance, in the surviving husband or wife, to the exclusion of all others; and the existence of the right in the second class named is wholly dependent upon the fact that there be neither husband nor wife surviving, or that he or she shall have waived the right by failing to sue in the time prescribed; thus evincing an intention on the part of the lawmaking power to confer this new right of action upon the second class only in the event the decedent at the time of death was, or had been, a married person, and should leave surviving lineal descendants. This is made more manifest by the third subdivision, whereby the right of action...