Peers v. Nevada Power, Light & Water Co.

• Decision Date: 01 December 1902
• Docket Number: 729.
• Citation: 119 F. 400
• Parties: PEERS v. NEVADA POWER, LIGHT & WATER CO.
• Court: U.S. District Court — District of Nevada

119 F. 400

PEERS v. NEVADA POWER, LIGHT & WATER CO.

No. 729.

United States Circuit Court, D. Nevada.

December 1, 1902

The complaint in this action among other things avers:

That Frank A. Wells died intestate at Reno, Nev., March 1, 1902 that plaintiff is the duly appointed and qualified administrator of his estate; that at the time of his death and for a long time immediately prior thereto, the defendant in a careless, reckless and negligent manner maintained across the premises described in said complaint 'electric wires, and conducted electricity upon and through said wires across said street, and the said wires were at the said times and place of insufficient caliber, capacity, material insulation, height above ground, attachment, support, and general construction to safely conduct the amount of electricity with which they were at said times and place surcharged and overburdened by defendant.'

(11) That on the 1st day of March, 1902, defendant knew and had notice that said wires were of insufficient caliber, etc., as above mentioned. Notwithstanding such knowledge and notice the 'defendant recklessly, negligently, and in willful disregard of and indifference to the personal safety of public travelers over the said Ninth street, and the personal safety of the said Frank A. Wells, deceased, while a traveler, at said time and place maintained, surcharged, and overburdened the said wires with a highly dangerous amount of electricity.'

(12) That while said wires were recklessly and negligently maintained by defendant 'the said Frank A. Wells, deceased, while traveling afoot upon the said Ninth street, and without fault or negligence upon his part, came in contact with the said wires, and was by the electricity with which the same were recklessly and negligently surcharged and overburdened by defendant as aforesaid then and there killed.'

(14) That said Wells died, leaving surviving him a mother, sister, and a brother, whose names and ages are stated in the complaint.

(15) That by reason of the premises hereinbefore mentioned and pleaded, plaintiff, as the administrator of the estate of Frank A. Wells, deceased, has sustained damage in the sum of $40,000.

To this complaint the defendant interposed a demurrer on several grounds; among others: (1) That the complaint does not state facts sufficient to constitute a cause of action. (2) That the 11th paragraph of the complaint is uncertain, in this: That it cannot be ascertained therefrom that the defendant knew or had notice of the matters therein set forth before the alleged injury. (3) That the tenth, eleventh, and twelfth paragraphs are uncertain, in that it does not appear therefrom whether the death of Wells was due 'to the alleged careless, reckless, and negligent manner in which said wires were maintained across Ninth street, or to the amount of electricity with which they were surcharged and overburdened, or to the insufficient caliber, capacity, material, insulation, height above ground, attachment, support, or general construction of said wires.' (4) That the complaint is uncertain because it cannot be ascertained therefrom 'whether said plaintiff seeks to recover pecuniary or exemplary damages, or both; nor does it appear therefrom the amount of each of said kinds of damages which he claims to have sustained.' (5) That it does not appear therefrom whether Wells left surviving him a father or other relative than those mentioned in the complaint, or that said plaintiff has been damaged by any of the alleged wrongful acts of defendant.' (6) That it does not appear therefrom that any pecuniary injury resulted to the plaintiff, or to any or all of the kindred of the said Wells.' (7) That two causes of action-- First, a cause of action which would have entitled the said Frank A. Wells to maintain an action in respect thereof; and second, a cause of action created by statute in favor of the kindred of said deceased-- are improperly united in said complaint, and are not separately stated.')8) 'That said complaint is uncertain, in that it cannot be ascertained therefrom what damages are claimed for the alleged cause of action which the said Frank A. Wells would have been entitled to maintain an action in respect thereof, and what damages are claimed in favor of the kindred of said Frank A. Wells, deceased.'

Torreyson & Summerfield, for plaintiff.

A. E. Cheney (Van Ness & Redman, of counsel), for defendant.

HAWLEY District Judge (orally).

An action for the death of an intestate was unknown to the common law, and is of purely statutory origin. The unsatisfactory state of the common law, which denied any right to recover for death due to negligence or wrongful act, led to the passage of statutes giving a right of recovery in such cases. The English act of 1846 (9 & 10 Vict. c. 93), commonly designated as 'Lord Campbell's Act,' so often referred to, has served as a model upon which most of the statutes of the various states of the Union have been enacted. Statutes of this general character do not merely remove the operation of the maxim, 'Actio personalis moritur cum persona,' but give a new cause of action. The object of all statutes passed in conformity with the general purpose of the Lord Campbell act is to provide the means for recovering the damages caused by that which is in its nature a tort. The death of the party injured ceases to relieve the wrongdoer from liability for damages caused by the death. This is the main purpose and effect of all the statutes upon this subject. Stewart v. Railroad Co., 168 U.S. 445, 449, 18 Sup.Ct. 105, 42 L.Ed. 537. 'For want of a common- law remedy, statutes vesting in certain designated persons a right of action for injury resulting from death by negligence have been passed in different jurisdictions, and in the case of a death * * * the terms of the statute in force in the particular jurisdiction must be looked to in order to determine the right to sue, the form of action, the parties plaintiff and defendant, the conditions of liability, and the measure of damages. ' Patt. Ry. Acc. Law, Sec. 350. It would, therefore, serve no useful purpose to review or refer to many of the cases cited by defendant, because most of them are based upon statutory provisions radically different from the act of this state requiring compensation for causing death by wrongful acts, neglect, or default, which reads as follows:

'Section 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the persons who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony.

'Sec. 2. The proceeds of any judgment obtained in any action brought under the provisions of this act shall not be liable for any debt of the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows: First-- If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then equally to each, the grandchild or children taking by right of representation; if there be no husband or wife, but a child or children or grandchild or children, then to such child or children and grand child or children by right of representation; if there be no child or grandchild, then to a surviving brother or sister; or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and provided further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named.'

Cutting's Comp. Ann. Laws, Secs. 3983, 3984.

This statute was construed by Judge Hillyer in Roach v. Mining Co. (C.C.) 7 Fed. 698. Without giving my approval to all the views expressed by him, it seems clear to my mind from the principles therein announced and the law applicable to the facts alleged that the general demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action should be overruled. I differ with Judge Hillyer in his construction of the act that 'there are two causes of action,-- two grounds upon which a recovery can be had,-- one for...