Lakeview, Inc. v. Davidson
| Decision Date | 10 October 1933 |
| Docket Number | 22407. |
| Parties | LAKEVIEW, Inc., et al. v. DAVIDSON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Nov. 14, 1933.
Syllabus by the Court.
1. Compensation for loss of life of a child based upon the negligent act of another, a parent may be allowed substantial damages measured by the experience and judgment of a jury enlightened only by a knowledge of the age, sex, and condition in life of the deceased child.
2. The negligence of the husband is not to be imputed to the wife unless he is her agent in the matter or they are jointly engaged in the prosecution of a common enterprise. The mere existence of the marital relation or mere knowledge and consent of the wife that the child accompany the husband will not have the effect of imputing the negligence of the husband to the wife.
3. The defense of an "Act of God" is a special defense in actions of negligence, and to be available must be pleaded.
4. The character of the place of the accident is one of the subjects of inquiry pertinent both as to notice and as to the condition of the locus in quo. Consequently in some cases evidence of other accidents occurring from the same cause may be admissible, where necessity of the collateral issue is shown, as tending to show the common cause of accidents is the dangerous and unsafe instrumentality.
5. As a general rule the carrying of liability insurance may not be the subject of evidence, but a judgment will not be reversed where such a fact is proved which is incidental to a material or necessary part of a cause of action.
6. Under sections 6070 and 6005, O. S. 1931, the city of Oklahoma City was granted power to enact and enforce regulatory ordinances governing the peace, health, and safety of the public in relation to its water supply and its basin.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Nan LeBron Davidson against Lakeview, Inc., and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
T. G Chambers, Jr., Kittie C. Sturdevant, and Cheek & McRill, all of Oklahoma City, for plaintiffs in error.
Miley Hoffman, Williams & France, of Oklahoma City, for defendant in error.
Judgment of the trial court in the sum of $8,000, was in favor of Nan LeBron Davidson, plaintiff, and against Lakeview, Inc. It was based upon damages for loss of life by the drowning in Lake Overholser on May 15, 1929, of plaintiff's five year old son, resulting from the sinking of a pleasure boat furnished for hire by defendant to the child's father, who at the same time was drowned. Negligence relied upon as the proximate cause of the damages is the defective condition of the boat so furnished consisting of inadequate buoyancy, and lack of life preservers as required by Ordinance No. 3019, Oklahoma City, as amended and a contract existing between defendant company and the city of Oklahoma City under and by which the defendant operated the concession of boating upon Lake Overholser, the water supply of said city.
It appears that on June 16, 1926, the said city leased to R. E. L. Finley, its water reservoir to the extent that lessee was granted for a period of ten years the exclusive right to issue permits to fish, hunt, boat, and maintain amusement devices and cold drink stands upon said reservoir and basin, in accord and subject to the terms of the ordinance above mentioned. On January 19, 1927, Finley assigned his right and interest in the lease to the defendant corporation. The assignment was approved by the city. Thereafter the defendant corporation operated the concession.
Section 9, par. D, of Ordinance No. 3019, supra, provides: "No person shall operate any boat upon such waters not equipped with one life preserver in good condition and of type approved by the water reservoir superintendent, for each passenger therein, and also not equipped with air chambers or chambers of sufficient displacement to insure buoyancy of the craft and passengers in event of capsizing."
The plaintiff alleged the terms and conditions of the contract and the duty imposed upon defendant by virtue of the contract and ordinance in reference to the furnishing to the public for hire, safe and properly equipped boats; that defendant, on May 15, 1929, acting under its lease contract and in pursuance of the ordinance governing, issued to Paul W. Davidson, for use of himself, his son, and William Barnhill, a permit and rented a boat for use upon said lake. That the boat so rented was not equipped with air chambers of sufficient displacement to insure buoyancy, which fact was unknown to Paul W. Davidson and his associates; that defendant failed to furnish said persons or equip said boat with life preservers as required by contract and ordinance; that the boat was thereupon used by said persons, a wind arose, the boat filled with water, and, due to its dilapidated, leaky, and obsolete condition, it sank resulting in the loss of life aforesaid.
The defendant admitted its corporate existence and its assigned lease contract, its operation of the concession as pleaded, otherwise it denied generally the negligence attributed to it. It alleged by way of conclusion that Paul W. Davidson was guilty of contributory negligence and that his contributory negligence so stated was imputed to the child in his custody.
The answer of defendant assumes and therefore eliminates from controversy, the relation of the parties and the loss of life.
Due to the fact that the occupants of the boat were drowned and the proximate cause of the loss is to some extent dependent upon circumstantial evidence, the evidence of the only eyewitnesses to the tragedy is material. Sam Huddleston and Lon Huddleston, brothers, were fishing on the dam. The former testified in substance: I saw the deceased Paul Davidson, his youngest son, and Barnhill a few minutes before their deaths; they were in the boat about 300 feet out in the lake. The boat was propelled by a motor; they were traveling in a westerly direction and a wave swamped the boat and it immediately went down. It went down so fast, it left them sitting there in the middle of the water; it just went right down.
Lon Huddleston so testified.
For reversal it is contended, under assignments of error I, II, and XII, that the amount of the verdict is excessive. While it is to be remembered in this state that damages for wrongful death are strictly compensatory as distinguished from punitive, yet the law presumes a pecuniary loss to a parent from the death of a child.
Many elements material to gauge the amount of damages to be awarded in the case of wrongful death of an adult cannot be shown in the case of a minor. Typical of these is the actual earning capacity. While, in this record, there is no available exact word of testimony showing the economic or other conditions under which this child was being reared, its prospect for future life without handicaps, or the amount and number of financial contributions it might have otherwise made to the mother, nevertheless the judge and jury apparently were well advised as to the matters from a general view of the facts and circumstances of the case. After all, as stated by the Connecticut court, Gorham v. Cohen, 102 Conn. 567, 129 A. 523, 524, "to attempt to determine what is the economic value of a life that is ended so shortly after it is begun opens at best an almost illimitable field for the exercise of judgment, and the conclusion of the twelve individual minds which combine to make the verdict, fortified as here by the refusal of the trial judge to interfere, is not easily to be set aside." As stated by the Washington court, Kranzusch v. Trustee Co., 93 Wash. 629, 161 P. 492, 494: "All the jury could do was to take into consideration the age, health, and capacity of the child, the situation of the parents, and award such damages as to them should seem just."
The reviewing court's duty is aptly stated in such cases by the California court, Gorman v. Sacramento County, 92 Cal.App. 656, 268 P. 1083, 1088: "Unless the verdict is so plainly and outrageously excessive as to suggest at first blush passion, prejudice or corruption on the part of the jury," the reviewing court cannot set it aside.
General knowledge of the jury, in the case of Klusman v. Harper, 221 Mo.App. 1110, 298 S.W. 121, is relied upon to sustain a substantial verdict of a jury because of the great difficulty of procuring evidence as to the loss sustained by the death of a child of tender years. See, also, Ellis v. Ashton & St. Anthony Power Co., 41 Idaho, 106, 238 P. 517, 523; Spivack v. J. Hahn Bakery Co. (Mo. Sup.) 214 S.W. 166; Stipetich v. S. S. & Mfg. Co. (Mo. App.) 218 S.W. 964, 965; Flippen-Prather Realty Co. v. Mather (Tex. Civ. App.) 207 S.W. 121; Williams v. Hines (Mo. App.) 229 S.W. 414, 415; O'Meara v. Haiden, 204 Cal. 354, 268 P. 334, 60 A. L. R. 1381.
Under the circumstances of this case we are unable to hold the verdict excessive.
Under assignments of error IX (relating to Instruction No. 11) and X (relating to requested instructions Nos. 9 and 10), it is urged the measure of damages stated is erroneous.
Instruction No. 11 bases the measure of damages upon such an amount as will compensate the plaintiff for the actual pecuniary loss occasioned to her by the death of her son, limited to the value of the child's services during minority and such contributions as might reasonably have been expected to be received after the child reached majority.
The first paragraph reads: "You are further instructed that if in this case the jury believe from the evidence that the deceased child * * * was drowned and died subsequent to the death of his father and that such drowning was proximately caused by the...
To continue reading
Request your trial