McCoullough v. Chi., R. I. & P. Ry. Co.

• Decision Date: 07 June 1913
• Citation: 142 N.W. 67,160 Iowa 524
• Parties: MCCOULLOUGH v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

160 Iowa 524

142 N.W. 67

MCCOULLOUGH

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

June 7, 1913.

Appeal from District Court, Hardin County; Charles E. Albrook, Judge.

This is an action for damages brought under the provisions of the Employer's Liability Act enacted by Congress. The action was brought by the administrator in behalf of the parents of the deceased. There was a verdict for the plaintiff, and the defendant has appealed. Reversed and remanded.J. L. Parrish and Robt. J. Bannister, both of Des Moines, and Lundy & Wood, of Eldora, for appellant.

Bryson & Bryson, of Iowa Falls, and Wade, Dutcher & Davis, of Iowa City, for appellee.

EVANS, J.

The decedent was an unmarried adult 25 years of age. He left surviving him a father and mother 53 and 54 years of age, respectively. He was an employé of the defendant company, and as such was engaged at the time of the accident resulting in his death in interstate commerce. He was the forward brakeman on his train, and was at his proper place upon the engine while the train was running between stations, when a side bar of the drive wheel was suddenly broken. The revolving piece tore the cab of the engine where the decedent was sitting, and inflicted injury upon him from which he shortly died. There was a verdict for the plaintiff for $5,000. It is urged by the appellant that there was no basis either in the pleading or in the evidence for the allowance of substantial damages under said Liability Act. The question presented is a very important one in its effect upon future cases under this statute, and we therefore give it our first attention.

The Liability Act referred to creates a right of action against the employer for the death of any employé resulting from the employer's negligence, in favor of the administrator but for the benefit of certain classes of relatives as follows: “(1) For the benefit of the surviving widow or husband and children of such employé; (2) and if none then of such employé's parents; (3) and if none then of the next kin dependent upon such employé.” The beneficiaries of this suit are those of the second class above stated. It is urged by the appellant that the petition made no averment that the beneficiaries named suffered any pecuniary loss by reason of their son's death. And it is urged, further, that there was no evidence of any such pecuniary loss or of any facts from which such pecuniary loss could be found. Inasmuch as this act impliedly provides that suit may be brought thereunder in state courts as well as federal courts, it is important that there be uniformity of judicial opinion in construing its provisions. Manifestly, the final word will rest with the Supreme Court of the United States as to matters of substantive right thereunder. As to pleading and procedure, necessarily the courts of each state must pursue their own statutory methods.

[1] The parties before us differ in their analysis of the act in question. The plaintiff contends that in its general application it is not materially different from the Iowa statute on the same subject. This contention is not tenable. This act is modeled in its principal features upon an English statute known as Lord Campbell's Act, enacted in 1846, and which, with some amendment, has been in force in England ever since. This act does not provide for a survival of the cause of action arising to the decedent in his lifetime because of the injury which resulted in his death. It creates a new cause of action, not in favor of the estate of the deceased, but in favor of certain specified classes of beneficiaries. The cause of action is based, not upon the injury to the deceased, but upon the fact of his death by wrongful act of the defendant. The extent of damage in each case is to be measured by the pecuniary loss sustained by the particular beneficiaries rather than by the loss to the estate of the decedent as such. Similar statutes have been enacted in 35 or 40 states of the Union, and have been in force in some of them for many years. Iowa, however, is not one of such states. Our statute is a survival statute. That is to say, the cause of action which arose to the deceased in his lifetime because of the injury is made to survive after his death to his administrator. The extent of damage is measured by the loss to his estate as such, although exemption of the proceeds for the benefit of the family is provided. The measure of damage is not controlled or varied by the identity or circumstance of the particular person or persons to whom the benefit inures. It will be noted that the federal act under consideration provides for three classes of beneficiaries in the alternative; preference being given in the order named. The existence of the first class excludes the others; the existence of the second excludes the third. If there be no representative of any of the three classes, then there is no cause of action.

[2] Manifestly, also, the measure of damage in favor of the first class will be essentially different from that in favor of the second and third classes, and that in favor of the second class may be different from that in favor of the third.

[3] In those states, where similar statutes have been in force, it has been quite uniformly held that substantial damages will be presumed in favor of the widow and children without special averment or proof other than a showing of the pecuniary value of the life of the decedent to his family; and doubtless to his own estate, on the theory that a prospective inheritance of such estate by the family would ordinarily be a reasonable expectation. It has also been quite usually held that as to other classes of beneficiaries it is necessary to aver and prove their pecuniary loss by appropriate allegation and evidence. If the action be brought on behalf of the parents, it is not enough to show their mere survival. Pecuniary loss must be shown. From the nature of the case the evidence must often be circumstantial only and perhaps indefinite, but the aim of the statute to that end is definite and persistent.

[4][5] Where recovery is claimed for the benefit of parents for the death of a child, it is material to show whether the decedent was a minor or adult. If a minor, the question whether his services during the remaining years of his minority would have been pecuniarily valuable to his parents may be inquired into as affecting the measure of damage. If the decedent was adult, then this question is eliminated. There remains, however, the somewhat narrow ground of “prospective gifts” either of money, property, or services which the parents could have reasonably expected to receive in the course of their lives from the decedent. Under this act, pecuniary loss only can be considered. Compensation cannot be had for suffering or bereavement. It has been held that a presumption of nominal damages will obtain in favor of the parents. Atchison R. R. Co. v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543, and cases cited therein. But there is no presumption in favor of substantial pecuniary loss to parents or dependent relatives, except such inference or presumption as may naturally arise out of evidence tending to show such loss.

Apparent exceptions to this rule are found in New York and Illinois. But the decisions in those states are based upon the particular form of their statutes. Each statute provides that the jury may give “such damages as they shall deem a fair and just compensation.” Under each statute, also, the beneficiaries are confined to surviving husband or wife and next of kin, and the damages recovered are distributed in accordance with the statutes of descent.

[6] Generally speaking, in all other jurisdictions the measure of such loss is held to be the present worth of such gifts as the parents could reasonably have expected to receive from their adult child in the course of their lives. The trial court instructed in substance to this effect. The difficulty with this record is not in the instructions nor in the rulings of the court on the admission of evidence, but in the final state of the evidence, and perhaps in the state of the plaintiff's pleadings. In our foregoing analysis of the Liability Act in question, reference is had to the original act of April 22, 1908, alone. The amendment of April 5, 1910, is excluded from consideration, because the alleged cause of action involved herein accrued prior to its adoption.

[7][8] This question of loss of prospective gifts to the parents will ordinarily involve an inquiry into the means and earning capacity of the decedent on the one hand, and the means and earning capacity of the parents on the other. The extent of previous contributions for support would clearly be a proper consideration. It is not legally necessary to show that the parents were dependent upon the deceased child as in cases of “dependent next of kin.” But such fact would undoubtedly be admissible in behalf of the parents if it were shown that such dependence was recognized by the deceased in the form of contributions. In the nature of the case, evidence cannot be very definite as to the actual amount of the pecuniary loss sustained in such a case, but it does devolve upon the plaintiff to show those general facts which are necessarily within the general knowledge of the beneficiaries and which bear upon the financial resources and prospects of themselves, as well as those of the decedent.

[9] Turning to the petition in the case before us, there was an averment that the decedent left surviving him his father and mother. There was no direct averment that such survivors had sustained any pecuniary loss by his death nor any direct averment that the action was brought in their behalf. Taking the petition as a whole, however, the fair inference perhaps ought to be indulged that such was the apparent intention of the pleader. We would be slow to reverse on this ground, especially in view of the fact that the...