McClaugherty v. Rogue River Elec. Co.
| Decision Date | 10 November 1914 |
| Citation | 73 Or. 135,144 P. 569 |
| Parties | MCCLAUGHERTY v. ROGUE RIVER ELECTRIC CO. |
| Court | Oregon Supreme Court |
On rehearing. Judgment of lower court affirmed.
For former opinion, see 140 P. 64.
Porter J. Neff, of Medford (Neff & Mealey, of Medford A. C. Hough, of Grants Pass, and Carey & Kerr and Harrison Allen, all of Portland, on the brief), for appellant. A. E Reames, of Medford, for respondent.
No new question is presented upon a reargument of this case. It is urged with a great deal of emphasis that the trial court erred in ruling upon the evidence and instructing the jury in regard to relations existing between the decedent, James McClaugherty, and his father, the plaintiff, and the habits and probable length of life of the beneficiary, as bearing upon the amount of damages recoverable. The court excluded evidence offered by the defendant concerning the habits of the plaintiff as to drinking. Such evidence must be considered as likely to prejudice the jury, or as an attempt to govern the amount of damages to be recovered by the probability of how the amount received as compensation for the alleged injury would be expended by the father. The Employers' Liability Act (section 4), under certain conditions, gives a right of action to the father in case of the wrongful death caused by a failure to conform to the provisions of the act "without any limit as to the amount of damages which may be awarded." The statute does not base the right of action, nor the amount of recovery, upon the moral excellence or standing of either of the beneficiaries named in the act nor make the conduct of such beneficiary a criterion either as to such right or amount of recovery. Such compensation should not be increased nor diminished on account of the character or habits of the person entitled to the same. Consolidated Stone Co. v. Morgan, 160 Ind. 241, 248, 66 N.E. 696. The evidence offered was properly excluded.
In the case mentioned, under a statute providing that damages recovered for death caused by negligence must inure to the benefit of the widow and children, if any, testimony in regard to the habits and moral character of the widow of the decedent was held to have been properly excluded. The court carefully stated the issues made by the pleadings and instructed the jury in part as follows:
"The law provides that if an electric company, transmitting high voltage current, fails to comply with those requirements to which I shall call your attention, and death shall result from such failure, then the electric company shall be liable for the damages actually sustained, and there shall be no limit as to the amount of damages which can be recovered, excepting, of course, that the same cannot exceed the amount sued for, nor can they exceed the damages actually sustained."
After fully explaining the provisions of the act, the court further instructed the jury as to the measure of damages, to the effect that, if they found for the plaintiff, he was entitled to recover the same amount James McClaugherty would have been entitled to recover, had he survived, but received the injury, "under the same circumstances, and in considering that question you will take into consideration his age at the time of receiving the injury, his probable expectancy of life, as shown by the evidence, and his earning capacity, and determine the amount, in case you shall find for the plaintiff."
As we understand the contention of learned counsel for the defendant, although upon this point they do not agree, the act in question is a "death" statute, and this is not a survival action. In so far as definitions are of any assistance, we would be inclined to the belief that the law partakes of the nature of both. As said by Mr. Justice Wolverton, in Hawkins v. Barber, etc., Co. (D. C.) 202 F. 341:
etc.
We quote from the brief of one of defendant's counsel:
"The Employers' Liability Act of 1910 is not a dependent statute, but a survival statute, and is akin to section 34, L. O. L., and section 380, L. O. L."
As stated in our former opinion, the act authorizes...
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