Jennings v. Alaska Treadwell Gold Min Co.

• Decision Date: 03 May 1909
• Docket Number: 1,638.
• Citation: 170 F. 146
• Parties: JENNINGS v. ALASKA TREADWELL GOLD MINING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

170 F. 146

JENNINGS v. ALASKA TREADWELL GOLD MINING CO.

No. 1,638.

United States Court of Appeals, Ninth Circuit.

May 3, 1909

R. W Jennings and Z. R. Cheney (L. S. B. Sawyer, of counsel), for plaintiff in error.

Shackleford & Lyons and John Flournoy, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This action was brought by the plaintiff in error under section 353 of the Alaska Code of Civil Procedure to recover damages for the death of plaintiff's intestate caused by the alleged negligence of the defendant in error in failing to maintain in a reasonably safe condition the machinery and other appliances used in operating a hoisting apparatus in defendant's mining shaft. The case was tried before a jury. At the conclusion of the testimony defendant's counsel moved the court to instruct the jury to return a verdict for the defendant, for the reason that it was not shown that the defendant had been guilty of negligence with respect to any of the matters charged in the complaint. The court instructed the jury to return a verdict in favor of the defendant, but mainly upon the ground that there was a failure of proof that any one had suffered damage or pecuniary loss by reason of the death of plaintiff's intestate.

The case of Alaska Treadwell Gold Mining Co. v. Cheney (C.C.A.) 162 F. 593, involved the same accident as in this case, and we had before us in that case substantially the same evidence as in this case. We held there that the evidence of negligence on the part of the defendant was sufficient to go to the jury. The motion of the defendant to instruct the jury to return a verdict for the defendant on this ground should therefore have been denied. This leaves but the single question of damages to be determined upon this writ of error.

The evidence tended to show that decedent was a helper on a machine drill working in the bottom of the shaft, that he knew his business, looked like a healthy man, was about 24 years of age, and was earning about $3.75 per day and his board. The American Experience Tables of Mortality showing life expectancy were introduced in evidence.

Joe Pazetti, a witness called on behalf of the plaintiff testified that he knew the deceased. He was questioned as follows:

'Q. Did he have a family? A. He say so. Q. Where did he say his family was? A. He say they are in California. Mr. Cobb: We object to this line of testimony, for the reason that it is wholly irrelevant. This is not a suit brought by his family; it is brought by Mr. Jennings, as administrator of the estate. The Court: I think the objection ought to be sustained.'

Section 353 of the Code of Civil Procedure of Alaska (Act June 6, 1900, c. 786, 31 Stat. 392) provides as follows:

'When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed ten thousand dollars, and the amount recovered, if any, shall be exclusively for the benefit of the decedent's husband or wife and children when he or she leaves a husband, wife or children, him or her surviving; and when any sum is collected it must be distributed by the plaintiff as if it were unbequeathed assets left in his hands, after payment of all debts and expenses of the administration, and when he or she leaves no husband, wife or children, him or her surviving, the amount recovered shall be administered as other personal property of the deceased person; but the plaintiff may deduct therefrom the expenses of the action, to be allowed by the proper court upon notice, to be given in such manner and to such persons as the court deems proper.'

The Alaska Code of Civil Procedure is substantially the same as the Oregon Code of Civil Procedure, and section 353 of the Alaska Code is identical with section 381 of the Oregon Code (B. & C. Comp.), with the following exceptions: In the Alaska Code the amount that may be recovered 'shall not exceed ten thousand dollars'; while in the Oregon Code the amount that may be recovered 'shall not exceed five thousand dollars.' In the Oregon Code it is provided that:

'The amount recovered, if any, shall be administered as other personal property of the deceased person.'

In the Alaska Code there is a provision that:

'The amount recovered, if any, shall be exclusively for the benefit of the decedent's husband or wife or children, when he or she leaves a husband, wife or children, him or her surviving.'

But that provision has no bearing on this case, as the deceased left no surviving wife or children. The next provision in the Alaska Code is:

'When he or she leaves no husband, wife, or children, him or her surviving'--that is this case-- 'the amount recovered shall be administered as other personal property of the deceased person.'

This last provision, it will be observed, is identical with the Oregon Code.

In 1898, two years before the adoption of the Alaska Code by Congress, the section of the Oregon Code under consideration was brought before the Supreme Court of that state in the case of Perham v. Portland Electric Co., 33 Or. 451, 53 P. 14, 24, 40 L.R.A. 799, 72 Am.St.Rep. 730. In an elaborate opinion upon this statute the court refers to the construction placed upon the original Lord Campbell act passed by the British Parliament in 1846, the incorporation of this act in one form or another into the legislation of most of the states of the Union, and the construction placed upon such statutes by the courts of the states.

With respect to the beneficiaries under the Oregon act and the damages that may be recovered, the court said:

'It is next claimed that the complaint is defective because it does not show that the deceased left surviving him any heirs, legatees, next of kin, or creditors. * * *

'Under Lord Campbell's act and similar statutes, the damages recovered belong to the designated beneficiary, and are measured by the value of the life taken to the particular person entitled to the benefit of the statute; while under our statute they belong to the estate, and are coextensive with the value of the life lost, without regard to its value to any particular person. In the one case the object of the action is to recover the pecuniary loss sustained by the designated relatives, and in the other the value of the life lost, measured, as near as can be, by the earning capacity, thriftiness, and probable length of life of the deceased, and the consequent amount of probable accumulations during the expectancy of such life.'

The court continues:

'It follows, therefore, that, so far as the right to maintain the action is concerned, it is immaterial whether the deceased left surviving him any relatives or creditors whatever. The right of action is given by the statute to the administrator or executor in his representative capacity, and is in the nature of an asset...