Lundeen v. Great N. Ry. Co.

• Decision Date: 05 February 1915
• Docket Number: No. 18980[205].,18980[205].
• Citation: Lundeen v. Great N. Ry. Co., 128 Minn. 332, 150 N.W. 1088 (Minn. 1915)
• Court: Minnesota Supreme Court
• Parties: LUNDEEN v. GREAT NORTHERN RY. CO.

128 Minn. 332

150 N.W. 1088

LUNDEEN

v.GREAT NORTHERN RY. CO.

No. 18980[205].

Supreme Court of Minnesota.

Feb. 5, 1915.

Appeal from District Court, Ramsey County; James H. Quinn, Judge.

Action by William F. Lundeen, administrator, against the Great Northern Railway Company. From denial of alternative motion for judgment or new trial, defendant appeals. Affirmed.

Syllabus by the Court

Plaintiff's intestate was a common laborer, 23 years old when killed. He had remained with and assisted his parents until a few months previous to his death. Out of his first month's wages he sent $10 to his father because of the latter's need. The parents worked on a farm but did not own it. In this action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, s 8657]), it is held, that there was not such a failure of proof of pecuniary loss to the parents that defendant was entitled to either judgment notwithstanding the $2,000 verdict, or a new trial.

M. L. Countryman and A. L. Janes, both of St. Paul, for appellant.

T. D. Sheehan, of St. Paul, and Thomas D. Schall and Burdett C. Thayer, both of Minneapolis, for respondent.

HOLT, J.

Plaintiff's intestate, Nikolai Lepisto, met death while in defendant's service under circumstances creating a cause of action under the federal Employers' Liability Act. His parents are the beneficiaries. There was a recovery. Defendant's motion in the alternative for judgment or a new trial was denied, and it appeals.

But one question is presented, and is thus stated by defendant:

‘The sole contention of appellant in this case is that there is no evidence from which the jury was justified in finding that the respondent suffered any pecuniary loss whatever on account of the death of the said Nikolai Lepisto.’

The evidence bearing upon that proposition is in substance this: Deceased died within 20 minutes after the accident. He was then 23 years of age. He came to this country two months before. Prior thereto he had lived with his parents in Finland. While here he worked one month in a lumber camp, and about two weeks for defendant as an ordinary laborer unloading ore cars upon the docks at Allouez, Wis. His wages are not disclosed. An older brother, who worked for defendant and was near by when the accident happened, gave the only evidence there is in the record from which to deduce the pecuniary loss sustained by the parents in the death of their son. This brother arrived here a few months ahead of deceased, and he had not lived with the parents for about five years previous thereto, but had been at work some 50 or 60 miles distant. However, he made visits for a week or two at a time, at intervals of two to six months during those years, so that the fair inference is he knew the situation. This brother testified that Nikolai assisted his parents, saying:

‘Sometimes he gave money and sometimes they took a piece of work together, and Father got most of the results of the work, even if the old man wasn't able to work as hard as he would.’

The father's business was farming and ‘woods work, whatever he can when able.’ He did not own any farm. Two sons, 18 and 20 years old, remain with the parents. The latter are about 60 years of age. After the deceased finished his month's service in the lumber camp, he sent his father $10 because ‘the father needed it.’ It must be conceded that the evidence is scant and not what could be desired. The parents' testimony is not here, and the great obstacles in the way of obtaining the same from a distant and inaccessible country may account for, if not excuse, its absence. But, taking the evidence as it is found, may we say there is no support for the amount of the verdict? Under our decisions, we think there is. The facts indicate that the parents were in need of financial assistance; that the deceased had during his minority and for two years in addition given such aid both in money and its equivalent, work; and that he had the disposition to continue the same, since from his first wages in this country he sent his father $10. It is also apparent that the deceased was industrious, and was earning wages, at least those of the ordinary laborer. We think these are factors from which the jury could find that in the death of their son the parents sustained a substantial pecuniary loss. In the case of the death of young minors by wrongful act, parents have been allowed substantial recovery. In O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 289, 45 N. W. 440, a verdict of $3,000, for the death of a child six years old, was held not excessive. The same amount for death of a laborer's child 6 1/2 years old was sustained in Gunderson v. Northwestern Elevator Co., 47 Minn. 161, 49 N. W. 694, and therein the court discusses the basis upon which the jury may predicate the estimate of pecuniary loss to the father. In Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106, a verdict of $2,750, for a child 5 years and 9 months, held not too large. See, also, 18 Ann. Cas. page 1225, for cases from other courts. True, some courts place the basis of recovery in the case of minors, in a large measure, upon the right of the parent to the earnings of the child. But how uncertain are not the factors upon which to calculate the damages on account of the probable earnings during minority in a case where a child of tender years is killed by wrongful act? And as a practical matter, in this age of compulsory education which keeps children in school until they are almost of age, must it not be said that it is exceedingly problematic whether the expense of education and support of a child to majority does not exceed the earnings of such child during that time? So that, theorize as we may, little, if any, aid is derived from keeping in mind any distinction between minor and adult children in fixing the parent's pecuniary loss in case of death from wrongful act. Pecuniary loss measures the damages in either case.

A few of our cases involving the pecuniary loss to parents from the death of an adult child show that the facts, upon which damages were awarded, pointed with no more certainty to the amount of the verdict, as sustained or fixed by the court, than in the case at bar. In Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5, 46 N. W. 79, the verdict was reduced from 3,500 to $2,000. There the deceased was 39 years old, and divorced; the mother being the beneficiary. He had accumulated no property, and was working for $2.25 per day. The mother thought he have her about $50 a year, but, when interrogated as to what moneys he did give her, could only recall $13 at one time and $5 at another. The mother was living on a farm with her second husband. In Sieber v. Great Northern Ry. Co., 76 Minn. 269, 79 N. W. 95, the court upholds a recovery of $2,500 to the father for the death of a son 28 years old earning $60 to $70 a month, where it had not been made to appear that the son, after becoming of age, had ever given the father pecuniary aid or had accumulated any property. Swanson v. Oakes, 93 Minn. 404, 101 N. W. 949, holds a verdict of $2,000 not excessive, where it merely appeared that the decedent was 21 years of age, in good health, apparently faithful to his duties, and ‘that his mother, residing in Sweden, depended upon his efforts to some extent for her support.’ In ...