Kelly v. Lemhi Irrigation & Orchard Co., Ltd.

Decision Date02 October 1917
Citation168 P. 1076,30 Idaho 778
PartiesHARRY KELLY, as Administrator of the Estate of IRA L. DAVIS, Deceased, Respondent, v. THE LEMHI IRRIGATION AND ORCHARD COMPANY, LIMITED, a Corporation, Appellant
CourtIdaho Supreme Court

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. J. M. Stevens, Judge.

Action for damages. Judgment for plaintiff. Reversed conditionally.

Cause remanded. Costs upon appeal awarded to appellant. Petition for rehearing denied.

E. W Whitcomb and Stevens & Clute, for Appellant.

No evidence was given showing that the collateral heirs suffered any damages. Such heirs must prove probable loss or their recovery will be limited to nominal damages. (Burk v Arcata & Mad River R. Co., 125 Cal. 364, 73 Am. St. 52 57 P. 1065.)

The entire evidence did not show any negligence on the part of the defendant company, and it was shown by the evidence that if the accident was due to anyone's negligence, it was to the negligence of the fellow-workmen of the deceased. ( New Pittsburg Coal etc. Co. v. Peterson, 136 Ind 398, 43 Am. St. 327, 35 N.E. 7; Larsen v. LeDoux, 11 Idaho 49, 81 P. 600; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Ell v. Northern P. R. R. Co., 1 N.D. 336, 26 Am. St. 621, 48 N.W. 222, 12 L. R. A. 97; McKillop v. Superior Shipbuilding Co., 143 Wis. 454, 127 N.W. 1053; Keenan v. New York & Lake Erie Western R. Co., 145 N.Y. 190, 45 Am. St. 604, 39 N.E. 711; McKinnon v. Norcross, 148 Mass. 533, 20 N.E. 183, 3 L. R. A. 320; Bagley v. Consolidated Gas Co., 5 A.D. 432, 39 N.Y.S. 302; Kliegel v. Weisel & Vilter Mfg. Co., 84 Wis. 148, 53 N.W. 1119.)

Instructions Nos. 4 and 27 were wrong and misleading, for the reason that they in no sense are restrictive as to the amount of damages which the jury were entitled to assess. (Holt v. Spokane etc. P. R. Co., 3 Idaho 703, 711, 35 P. 39; Burk v. Arcata & Mad River R. R. Co., supra; Morgan v. Southern P. Co., 95 Cal. 510, 29 Am. St. 143, 30 P. 603, 17 L. R. A. 71; Green v. Southern P. Co., 122 Cal. 563, 55 P. 577; Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 73 P. 163; Ruppel v. United Railroads of San Francisco, 1 Cal.App. 666, 82 P. 1073; Simoneau v. P. Electric Ry. Co., 159 Cal. 494, 115 P. 320, 2 N.C. C. A. 137; In re Calif. & Imp. Co., 110 F. 670; Christensen v. Floriston Pulp & Paper Co., 29 Nev. 552, 92 P. 210.)

Where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him and are not in a situation to require it, only nominal damages can be recovered. (Rhoads v. Chicago & Alton R. R. Co., 227 Ill. 328, 10 Ann. Cas. 111, 81 N.E. 371, 11 L. R. A., N. S., 623; Wabash R. Co. v. Cregan, 23 Ind.App. 1, 54 N.E. 767; Cleveland, C. C. & St. L. R. Co. v. Drumm, 32 Ind.App. 547, 70 N.E. 286; Atchison, T. & Sante Fe R. Co. v. Weber, 33 Kan. 543, 52 Am. Rep. 543, 6 P. 877; Howard v. Delaware & Hudson Canal Co., 40 F. 195, 198, 6 L. R. A. 75; Falkenau v. Rowland, 70 Ill.App. 20; City of Chicago v. Scholten, 75 Ill. 468; Romeo v. Western Coal & M. Co., 157 Ill.App. 67; Chicago & N.W. Ry. Co. v. Swett, 45 Ill. 197, 92 Am. Dec. 206; Munroe v. Pacific Coast Dredging etc. Co., 84 Cal. 515, 18 Am. St. 248, 24 P. 303; Pepper v. Southern P. Co., 105 Cal. 389, 38 P. 974; Golden v. Spokane etc. R. Co., 20 Idaho 531, 118 P. 1077; Pool v. Southern P. Co., 7 Utah 303, 26 P. 654.)

A. C. Cherry and John H. Padgham, for Respondent.

We insist upon the definition of the word "pecuniary" adopted by the supreme court of Idaho, and the supreme court of the United States, and contend that loss of companionship of a brother is, in fact, a pecuniary loss.

Sec. 4100, Rev. Codes, does not limit the damages to pecuniary loss, and does not refer in any way to pecuniary loss or pecuniary damages, but provides that "such damages may be given as under all the circumstances of the case may be just." For the court to interpolate into the statute that damages can be given only when the loss of money is alleged and shown by evidence would be judicial legislation. (Holl v. Spokane etc. R. Co., 3 Idaho 703, 35 P. 39; Anderson v. Great Northern R. Co., 15 Idaho 513, 99 P. 91; Nehrbas v. Central P. R. Co., 62 Cal. 320; Beeson v. Green Mt. G. M. Co., 57 Cal. 20; Illinois Cent. R. Co. v. Barron, 5 Wall. (72 U.S.) 90, 18 L.Ed. 591; Houghkirk v. President, etc., 92 N.Y. 219, 225, 44 Am. Rep. 370; Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553.)

In the following cases it is distinctly held that loss of society is pecuniary loss: Peters v. Southern P. Co., 160 Cal. 48, 70, 116 P. 400; Hale v. San Bernardino Valley Traction Co., 156 Cal. 713, 716, 106 P. 83; Clark v. Tulare Lake Dredging Co., 14 Cal.App. 414, 434, 112 P. 564; Evarts v. Santa Barbara Consol. R. Co., 3 Cal.App. 712, 714, 86 P. 830; Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 535, 129 Am. St. 659, 16 Ann. Cas. 1189, 100 P. 971.

The reasonable expectation of pecuniary benefit to the next of kin by inheritance, or otherwise, from the continuance in life of the deceased was the proper measure of damages. ( Dickens v. New York C. R. Co., 23 N.Y. 158; Kane v. Mitchell Trans. Co., 90 Hun, 65, 35 N.Y.S. 581; Kelly v. Twenty Third St. Ry. Co., 14 Daly (N. Y.), 418; Holmes v. Oregon & C. R. Co., 6 Sawy. 275, 5 F. 523; Holland v. Brown, 13 Sawy. 284, 35 F. 43; Pennsylvania R. Co. v. McCloskey's Admr., 23 Pa. 526.)

In order for the negligence of fellow-servants to defeat an action of this kind, it must appear that the death was caused solely by the negligence of fellow-servants. If the negligence of the master commingles with that of a fellow-servant of the deceased, the master is liable. (4 Thomp. Neg., secs. 4856, 4858; Kennedy v. Grace & Hyde Co., 92 F. 116.)

A master must indemnify a servant who is injured by the negligence of a fellow-servant, when the delinquency consists in a failure to discharge properly either the function of furnishing the instrumentalities with which the business is carried on or the function of keeping those instrumentalities up to the legal standard of safety while they continue to be used. (Hough v. Texas & P. R. R. Co., 100 U.S. 213, 25 L.Ed. 612; Northern P. R. Co. v. Herbert, 116 U.S. 643, 6 S.Ct. 590, 29 L.Ed. 755; Northern P. R. Co. v. Peterson, 162 U.S. 346, 16 S.Ct. 843, 40 L.Ed. 994.)

The master owes the duty to his servant to use ordinary care and diligence to provide such sound and sufficient appliances or instrumentalities as are reasonably calculated to insure the safety of the servant in performing the service, to discover and repair any defect therein, and to provide a reasonably safe place in which to perform the service; and if he fail in either of these respects, and injury result to the servant because of such failure, the master will be liable. (4 Thompson on Neg., secs. 3986-3988.)

Collateral heirs may sue and recover substantial damages in a case of this kind. (Whitley v. Spokane etc. R. Co., 23 Idaho 642, 132 P. 121; St. Louis etc. R. Co. v. Moore, 101 Miss, 768, Ann. Cas. 1914B, 597, 58 So. 471, 39 L. R. A., N. S., 978; Florida etc. R. Co. v. Foxworth, 41 Fla. 1, 79 Am. St. 149, 25 So. 338; Mize v. Rocky Mt. Bell Tel. Co., 38 Mont. 521, 129 Am. St. 659, 16 Ann. Cas. 1187, 100 P. 971.)

MCCARTHY, District Judge. Morgan and Rice, JJ., concur.

OPINION

MCCARTHY, District Judge.

This is an action brought by Harry Kelly, as administrator of the estate of Ira L. Davis, deceased, against the Lemhi Irrigation and Orchard Company. It is charged in the complaint that the defendant wrongfully caused the death of the deceased while in its employ by providing the crew, of which he was a member, with a hay derrick which was unsafe and defective in certain particulars expressly set forth; that by reason of such defects said derrick fell and inflicted injuries upon deceased from which he died. The evidence shows that four married sisters and two older brothers are the sole heirs of the deceased. There is no evidence that any of said brothers or sisters were in any way dependent, financially, upon the deceased or had ever received any financial aid from him, nor does the evidence show any likelihood that they would have received any such aid in the future. In fact, the complaint does not contain any allegation that the heirs ever had received or ever expected to receive financial aid. The complaint alleges that the heirs were entitled to the society, companionship, help and advice of their brother and that by reason of the negligence of the defendant they have been deprived of his society, companionship, help and advice. The jury found a verdict for $ 2,500. Under the evidence the verdict must have been based upon the loss to the heirs of his companionship and society, as there was no evidence of any other loss.

The case is in this court on appeal from an order of the district court denying a motion for a new trial. The principal specifications of error are: The giving of certain instructions by the court; the refusal to give certain instructions requested by appellant; that excessive damages have been given under influence of passion and prejudice, as no evidence appears showing that the collateral heirs, for whose benefit the suit was brought, suffered any damages whatsoever; and that the evidence is insufficient to show actionable negligence on the part of appellant.

Appellant specifies as error instruction numbered 21, as follows: "It is not necessary for the plaintiff to prove all the acts of negligence charged against the defendant in the complaint. If he (the plaintiff) proves any one of the allegations of negligence, and the plaintiff's intestate, Ira L. Davis, deceased, was without fault, it is sufficient."

In speaking of "the acts of negligence," the court clearly refers to the different...

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