Nicoll v. Sweet

• Decision Date: 13 December 1913
• Parties: NICOLL v. SWEET ET AL.
• Court: Iowa Supreme Court

163 Iowa 683

144 N.W. 615

NICOLL

v.SWEET ET AL.

Supreme Court of Iowa.

Dec. 13, 1913.

Appeal from District Court, Benton County; C. B. Bradshaw, Judge.

Action at law to recover damages against the estate of S. S. Sweet, deceased, on account of the death of one Walter H. McNulty. Verdict and judgment for plaintiff, and defendants appeal. Affirmed.

Preston and Deemer, JJ., dissenting.Dawley & Wheeler, of Cedar Rapids, and Tom H. Milner, of Belle Plaine, for appellants.

D. L. Johnson, of Omaha, Neb., and C. W. E. Snyder, of Belle Plaine, for appellee.

WEAVER, C. J.

McNulty was injured by the falling of a cornice into the public street from a building owned by Sweet. Eight days after the accident, McNulty died of pneumonia, which plaintiff alleges was caused by the injuries so received, and the claim of damages is based upon that theory.

[1][2] It is strongly contended upon the part of the appellant that the record shows no evidence from which this fact could be found in favor of plaintiff. It is true that the testimony tends to show that McNulty was not in robust health at the time of his injury, that he had recently suffered from bronchitis and had some indications of weakness of the lungs; but the fact of ill health or physical weakness, if established or conceded, is by no means inconsistent with plaintiff's theory that the pneumonia which was the immediate cause of death was the direct result of the blow received from the falling brick. Indeed, such weakened condition, if it existed, may have rendered the deceased an easier victim of the fatal disease; yet if there was evidence for the jury that the pneumonia was the direct result of the injury, and such injury was fairly chargeable to the negligence of Sweet, the state of the deceased's health would in no manner affect the right of action on the part of his administratrix, though it may have bearing on the amount of the recovery. That there was evidence to go to the jury on both questions is scarcely open to doubt. On the matter of the alleged negligence, the fall of the cornice doubtless presented a case for applying the doctrine of res ipsa loquitur, to say nothing of other evidence bearing upon the situation. Concerning the relation of cause and effect between the injury received and the disease of which the intestate died, it may be said that the medical testimony on the part of plaintiff tended to show that the pneumonia was of traumatic origin; that is, pneumonia, the inciting cause of which was some physical violence or bodily injury. It is also shown that, from such an injury as the deceased suffered, pneumonia is likely to follow as a natural consequence. No other injury or efficient cause for the disease is suggested, and the question thus presented is one of fact and not of law. Brownfield v. Railroad Co., 107 Iowa, 254, 77 N. W. 1038;Lehman v. Railroad Co., 153 Iowa, 124, 133 N. W. 327.

[3] The jury was fairly and correctly instructed upon this proposition. The defendant's request for an instruction that the burdenwas upon the plaintiff to show that the injuries to McNulty did cause pneumonia, and if she failed in this respect she could not recover, stated a correct legal proposition, but it was fully covered and stated in the instructions which the court gave upon its own motion.

[4][5] The principal debatable question upon this appeal is the following: The surviving wife of McNulty, testifying as a witness, was permitted to say, over the objection of defendant, that the deceased left a family consisting of a wife and four children ranging from one to ten years of age. Referring to this feature of the evidence, the court told the jury that, if they found the plaintiff entitled to recover, the amount of damage to be assessed in favor of the estate of the deceased “is not to be increased by reason of his having children which he left surviving him; evidence of his children and the number thereof being admitted by the court as having bearing upon the question of inducement or incentive to habits of industry in case the deceased had lived.”

Error is assigned upon the admission of the testimony and upon the instruction to which we have referred. It is to be admitted that authority is to be found for the position of the appellant, and cases are not wanting in which recoveries in actions for damages sustained by reason of the death of a person have been set aside because of admission of proof that the deceased left wife and children surviving him. It is a matter, however, on which the precedents are not in harmony, and a majority of this court, after quite careful deliberation, is of the opinion that the better reason is with the rule holding the evidence competent. Practically the only objection of any plausibility to its admission is that its tendency is to excite the sympathies of the jurors and induce undue liberality in the assessment of damages. But, as is well known to all persons who have observed the course of litigation in matters of this kind, it is utterly futile to hope to keep the fact from the knowledge of the jury. More often than otherwise the widow and children are in the courtroom. If not, the facts concerning the victim of a fatal accident, his family, and their circumstances are public property, upon every tongue; they are mentioned in public print, talked about on the street corners and places where men meet and congregate; they crop out incidentally in the courtroom; and, even though the evidence be rigidly excluded on the trial, no juror enters upon the consideration of his verdict in ignorance of the actual situation in this respect. Even as a mere matter of protection of the interests of the defendant, it is at least an open question whether it is not better than the testimony of all these conditions surrounding the deceased at the time of his injury should not be admitted under the sanction of an oath and its bearing and effect regulated and controlled by appropriate instructions. If it be said that a juror's sympathies may control his actions even to the extent of disregarding the court's instructions, that suggestion, if sound, is not less applicable where the influencing fact comes to the juror's knowledge from sources other than the testimony or by absorption from the atmosphere in which the case has been tried. But the average jury is not made up of weaklings. Its members as a rule have an intelligent conception of their duties and obligations.

It is correct to say, as does the appellant, that the only true measure of recovery for the death of an individual is the value of his life to his estate, had he not come to such untimely end. It is hardly too much to say that this rule is vague, uncertain, and speculative, if not conjectural, but it is the best which judicial wisdom and experience has yet been able to formulate. No evidence is possible of the time which deceased would have lived but for the injury complained of. Had he avoided this injury, death may have met him the next day, week, or year in some other form. In business he might have become a phenomenal success and accumulated millions, or he might have lived to old age and died a pauper. From a man of good habits and prudence and industry, he might have become a spendthrift or a tramp, or if a man of dissolute habits he might have reformed into an efficient and prosperous citizen. But the demands of justice will not tolerate the idea that human life may be extinguished by the tort of another without the wrongdoer being held to answer therefor in damages, and the rule we have stated is the one which has been devised for this purpose. The principle which underlies it is of unquestionable soundness, but the difficulty which besets its practical application is in the fact that it calls for an estimate or conclusion which must be arrived at by a balancing of mere probabilities and possibilities which we deduce by way of inference from the age, character, habits, condition, education, employment, surroundings, and apparent capacity of the deceased. Fairness to the beneficiaries of the estate on the one hand and of the defendant on the other require that the jury be put in possession of all the facts having the slightest legitimate bearing upon this intricate problem. It is concededly the law of this state that in such case the plaintiff may show that the deceased was a married man. Wheelan v. Railroad Co., 85 Iowa, 178, 52 N. W. 119. This is said to be competent because “it may fairly be assumed that a married man will be more frugal and industrious and hence will accumulate a larger estate than a single man.” Beems v. Railroad Co., 58 Iowa, 158, 12 N. W. 222.

In Donaldson v. Railroad Co., 18 Iowa, 290, 87 Am. Dec. 391, the question presented in the case now before us was raised in the following manner. The action like the one at bar was brought by the administrator to recover damages for the death of his intestate. Plaintiff offered testimony showing the family of the deceased and their respective ages, as well as his occupation, earnings, and accumulations. The defendant objected thereto on the ground that the inquiries were improper, immaterial, and not the correct method for the ascertainment of the damages. The trial court instructed the jury that, if plaintiff was found entitled to recover, he would be entitled to recover such damages as the estate of deceased had suffered by reason of his death, and nothing should be allowed on account of his pain and suffering before death or for the grief and distress of the family or for their loss of his society. Passing upon the defendant's assignment of error in this respect, this court then said: “When a jury is thus guarded against the allowance of damages for improper causes, it would seem that no prejudice would result if the jury should be fully advised of the exact situation of the deceased, his occupation, annual earnings, age, health, habits, family, and estate. Many of these, and...