Killion v. Dinklage
| Decision Date | 29 May 1931 |
| Docket Number | 27721 |
| Citation | 236 N.W. 757,121 Neb. 322 |
| Parties | ALBERT A. KILLION, ADMINISTRATOR, APPELLEE, v. HERMAN DINKLAGE, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Wayne county: DE WITT C. CHASE JUDGE. Reversed.
REVERSED.
Syllabus by the Court.
In an action to recover for wrongful death, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and does not allege any pecuniary loss to such survivors as are described.
A presumption of pecuniary loss exists in favor of one legally entitled to service or support from one killed by the wrongful or negligent act of another.
A petition alleging a loss and injury caused by loss of service and contributions for support is sufficient averment of pecuniary loss to state a cause of action.
A quotient verdict is one where the jury for the purpose of arriving at a verdict agree that each should write on his ballot a sum representing his judgment; that the aggregate should be divided by the number of jurors; that they will be bound by the result and the quotient shall be the verdict. Such a verdict will be set aside.
A verdict is not a quotient verdict where the jury acted on the suggestion that each should indicate his judgment as to the amount and that the aggregate amount should be divided by twelve to ascertain the average, where there is no agreement that the amount so found should be their verdict.
The fact that the verdict was not the average amount arrived at by adding and dividing is evidence of the fact that it was not a quotient verdict.
Where it is called to the attention of the defendant's attorney before the jury are impaneled and sworn that the relationship of attorney and client existed between the plaintiff's attorney and some jurors, it is lack of diligence upon his part not to inquire further into the matter.
An instruction that casts the burden of proof upon the defendant to establish contributory negligence of plaintiff to prevail in his defense to such a degree as to defeat recovery is in conflict with the statutory comparative negligence rule of this state and is erroneous.
A new trial will not be granted upon the ground of newly discovered evidence, where such evidence is merely cumulative or impeaching or not of such controlling force as would probably change the result of the trial.
A parent can recover funeral expenses incurred for an unmarried minor child whose death was caused by defendant's negligence.
Appeal from District Court, Wayne County; Chase, Judge.
Action by Albert A. Killion, as administrator of the estate of Charles Killion, deceased, against Herman Dinklage. Judgment for the plaintiff, and the defendant appeals.
Reversed, and cause remanded.
Fred S. Berry, for appellant.
C. H. Hendrickson and Saxton & Hammes, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.
This is an action brought by the administrator of the estate of Charles Killion, deceased, under sections 30-809 and 30-810, Comp. St. 1929, to recover damages for the death of the deceased caused by the negligence of the defendant in the operation of his automobile, resulting in a collision. This action was prosecuted for the benefit of the father and mother of the deceased. From a verdict in favor of the administrator, the defendant appeals.
The petition alleges: "Charles Killion died unmarried, intestate, leaving surviving him his father, Albert Killion, and his mother, Jessie Killion, who are his next of kin; * * * that the plaintiff has sustained and suffered great loss and injury occasioned by loss of services and means of support and contributions therefor, and has been damaged on this first cause of action for the benefit of said father and mother." The petition of the plaintiff was challenged by a general demurrer. It is the contention of the defendant that this is not sufficient to state a cause of action in favor of plaintiff. He relies on the case of Chicago, B. & Q. R. Co. v. Van Buskirk, 58 Neb. 252, 78 N.W. 514. It was there held that a petition alleging that deceased left as his heirs and next of kin a father and mother did not state facts sufficient to constitute a cause of action. To practically the same effect is Chicago, B. & Q. R. Co. v. Bond, 58 Neb. 385, 78 N.W. 710, and Chicago, R. I. & P. R. Co. v. Young, 58 Neb. 678, 79 N.W. 556. Upon a retrial of the latter case, the petition was amended to include an allegation of pecuniary loss. Chicago, R. I. & P. R. Co. v. Young, 67 Neb. 568, 93 N.W. 922. Where there is a legal duty to support, it has been held that an averment of relationship is sufficient. City of Friend v. Burleigh, 53 Neb. 674, 74 N.W. 50; Omaha & R. V. R. Co. v. Crow, 54 Neb. 747, 74 N.W. 1066; Kearney Electric Co. v. Laughlin, 45 Neb. 390, 63 N.W. 941; Orgall v. Chicago, B. & Q. R. Co., 46 Neb. 4. It appears that the rule has long been established in this state that, in an action to recover for wrongful death, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and does not allege any pecuniary loss to such survivors as are described. The plaintiff relies upon the case of Tucker v. Draper, 62 Neb. 66, 86 N.W. 917, to support his petition. The allegation was that the father was damaged "by reason of death and loss of service" of a three year old son. Since the father of a three year old son is legally entitled to his service during his minority, the averment or relationship was held sufficient. A presumption of pecuniary loss exists in favor of one legally entitled to service or support from one killed by the wrongful or negligent act of another. The petition in the case at bar describes the parents of deceased, but does not show them to be legally entitled to service or support from the deceased. There is neither allegation of the minority of the deceased nor averment that parents are legally dependent upon him for support. Whether or not a petition which alleges "loss and injury occasioned by loss of services and means of support and contributions therefor" is a sufficient allegation of pecuniary loss under the statute is undoubtedly a close question. A majority of the members of this court are of the opinion that a petition alleging a loss and injury caused by loss of service and contributions for support is sufficient averment of pecuniary loss to state a cause of action. The general demurrer to the petition was therefore properly overruled.
The appellant claims that the judgment should be reversed because the verdict was what is commonly known as a quotient verdict. A quotient verdict is one where the jury for the purpose of arriving at a verdict agree that each should write on his ballot a sum representing his judgment; that the aggregate should be divided by twelve; that they will be bound by the result and the quotient shall be the verdict. It is almost universally held that, if the jury arrive at their verdict in such a manner, it will be set aside. The vice in such a verdict is that it does not represent the deliberate judgment of the jurors and that it is subject to manipulation and partakes of the nature of a lottery. Such an agreement would enable one juror by voting for a very large or a very small sum to produce an average for an amount which would be unreasonable and at variance with the judgment of the other jurors. Such a verdict has been condemned in numerous cases. Burke v. Magee, 27 Neb. 156, 42 N.W. 890; Sylvester v. Town of Casey, 110 Iowa 256, 81 N.W. 455; Haight v. Hoyt, 50 Conn. 583; George's Restaurant v. Dukes, 216 Ala. 239, 113 So. 53; Anderson v. Kirby, 105 Kan. 596, 185 P. 894; and numerous other cases. A verdict is not a quotient verdict where the jury acted on the suggestion that each should indicate his judgment as to the amount and that the aggregate amount should be divided by the number of jurors to ascertain the average, where there is no agreement that the amount so found should be their verdict. Herbert v. Katzberg, 104 Neb. 395, 177 N.W. 650; Janesovsky v. Rathman, 107 Neb. 165, 185 N.W. 411; Village of Ponca v. Crawford, 23 Neb. 662, 37 N.W. 609; Peak v. Rhyno, 200 Iowa 864, 205 N.W. 515; In re Estate of Havenmaier, 163 Minn. 218, 203 N.W. 958; Crawl v. Dancer, 180 Mich. 607, 147 N.W. 495; Reick v. Great Northern R. Co., 129 Minn. 14, 151 N.W. 408. The fact that the verdict was not the average amount arrived at by adding and dividing is evidence of the fact that it was not a quotient verdict. McElhone v. Wilkinson, 121 Iowa 429, 96 N.W. 868. It was established by affidavits of jurors, uncontradicted, that the amount arrived at by computation was either $ 8,600 or several hundred dollars in excess of the verdict returned. We are not unmindful of the fact that there was an attempt to impeach the testimony of the foreman of the jury by impeaching testimony to the effect that he stated shortly after the verdict was returned that the amount arrived at was $ 8,313, and that they merely cut off the $ 13. This testimony is denied by the juror. Even the affidavits of the four jurors who stated that they agreed in advance that the amount of said division should be the amount of the verdict do not state that verdict was arrived at without further deliberation. The issue of fact presented by affidavits and counter affidavits of jurors and oral testimony was passed upon by the trial court. This will not now be disturbed. Janesovsky v. Rathman, 107 Neb. 165, 185 N.W. 411; Canon v. Farmers' Bank, 3 Neb. (Unof.) 348; Farmers' Irrigation District v. Calkins, 104 Neb. 196, 176 N.W. 367.
Misconduct of juror is another ground urged for reversal. It is alleged that on his voir dire examination he testified falsely that ...
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Killion v. Dinklage, 27721.
...121 Neb. 322236 N.W. 757KILLIONv.DINKLAGE.No. 27721.Supreme Court of Nebraska.May 29, [236 N.W. 757]Syllabus by the Court. In an action to recover for wrongful death, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and does not ......