Phoenix Railway Co. v. Landis

• Decision Date: 02 April 1910
• Docket Number: Civil 1114
• Citation: 108 P. 247,13 Ariz. 80
• Parties: PHOENIX RAILWAY COMPANY, a Corporation, Defendant and Appellant, v. LEE H. LANDIS, Administrator of the Estate of GEORGE W. SANDERS, Deceased, Plaintiff and Appellee
• Court: Arizona Supreme Court

108 P. 247

13 Ariz. 80

PHOENIX RAILWAY COMPANY, a Corporation, Defendant and Appellant, v. LEE H. LANDIS, Administrator of the Estate of GEORGE W. SANDERS, Deceased, Plaintiff and Appellee

Civil No. 1114

Supreme Court of Arizona

April 2, 1910

APPEAL from a judgment of the District Court of the Fourth Judicial District, in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Chalmers & Wilkinson and Paul Burks, for Appellant.

The complaint should have stated the names of the beneficiaries and should have alleged the extent of pecuniary damage they had suffered. Hurst v. Detroit City Ry. Co., 84 Mich. 539, 48 N.W. 44; Orgall v. Burlington & M.R.R Co., 46 Neb. 4, 64 N.W. 450; Thompson v. Chicago etc. Ry. Co., 104 F. 845; Chicago, Burlington &amp Quincy Ry. Co. v. Van Buskirk, 58 Neb. 252, 78 N.W. 514; Chicago, Burlington & Quincy Ry. Co. v. Bond, 58 Neb. 385, 78 N.W. 710; Regan v. C.M. & St. P. Ry Co., 51 Wis. 599, 8 N.W. 292; Kansas & Pacific Ry. Co. v. Miller, 2 Colo. 445.

Instructions should be so framed that they will not only state the law correctly, but be entirely in harmony with each other. Hoben v. Burlington etc. R.R. Co., 20 Iowa 562; Chicago etc. R. Co. v. Payne, 49 Ill. 499; Nichols v. Jones, 32 Mo.App. 657.

Where the court undertakes to instruct the jury in regard to any point in the case either on his own motion or at the request of a party, he is bound to state the law fairly and correctly. Bergstroem v. State, 58 Tex. 92, 95. See to the same effect: South Covington etc. Ry. Co. v. Core, 29 Ky. Law Rep. 836, 96 S.W. 562, 564; Missouri, K. & T. Ry. Co. v. Kirschoffer (Tex. Civ. App.), 24 S.W. 577, 578.

The authorities are uniform to the effect that where an action is brought for the benefit of the widow or minor children, a showing to the effect that the deceased was earning wages at the time of his death and that the family relation existed between the deceased and such widow or minor children is sufficient to authorize a substantial recovery. Peden v. American Bridge Co., 120 F. 523; Standard Oil Co. v. Parkinson, 152 F. 681, 685, 82 C.C.A. 29; Malott v. Shimer, 153 Ind. 35, 74 Am. St. Rep. 278, 283, 54 N.E. 101; Archibald v. Lincoln County, 50 Wash. 55, 96 P. 831, 833; Baltimore & Ohio Ry. Co. v. State, 24 Md. 271; Louisville etc. Ry. Co. v. Wright, 134 Ind. 509, 34 N.E. 314, 315.

J. M. Jamison and Norris & Ross, for Appellee.

The recovery for the loss of life is of concern to the beneficiaries under this statute only so far as the amount recovered is the property of the heirs at law by statutory provision, in that it must be distributed to them exempt from debts, and it seems that there is here created a special property in the estate for the sole benefit of the heirs at law.

The question of damages is one for the jury to determine, and the trial court properly submitted the question to the jury, and under our statutes the jury is authorized to determine from all the facts and circumstances in evidence such an amount as will in their judgment, honestly exercised, be fair and just. His actual accumulations or disposition to save cut no figure whatever in determining damages. The law is that the probability of future accumulations may be inferred from the ability of the deceased to earn more than expenses, and under the evidence in the case the jury might consider the reasonable probability of future accumulations on the part of the deceased. Tuteur v. Chicago etc. R. Co., 77 Wis. 505, 46 N.W. 897; Jacksonville Elect. Co. v. Bowden, 54 Fla. 461, 45 So. 755, 15 L.R.A., N.S., 451; Bauer v. Richter, 103 Wis. 412, 79 N.W. 404; De Amado v. Friedman, 11 Ariz. 56, 89 P. 588; Carter v. North Carolina R. Co., 139 N.C. 499, 52 S.E. 642; Butte Electric Ry. Co. v. Jones, 164 F. 308.

Appellant takes no issue with the correctness of the instruction complained of (No. 12), except because of its failure to say something about the habits or disposition of the deceased to save money or accumulate property. It is conceded that appellant made no request to the trial court to charge upon these elements. Therefore, under the well-established rule appellant cannot now complain of the instruction given unless it was actually incorrect. Texas etc. R. Co. v. Volk, 151 U.S. 73, 14 S.Ct. 239, 38 L.Ed. 78; Isaacs v. United States, 159 U.S. 487, 16 S.Ct. 51, 40 L.Ed. 229; Backus v. Fort Street Union Depot, 169 U.S. 557, 18 S.Ct. 445, 42 L.Ed. 853; Humes v. United States, 170 U.S. 219, 18 S.Ct. 602, 42 L.Ed. 1011; Terry v. Railway Co., 14 Tex. Civ. App. 451, 37 S.W. 234. Under all of these authorities it is sufficient that no erroneous instruction was given.

OPINION

CAMPBELL, J.

-- Appellee, as administrator of the estate of George W. Sanders, recovered a judgment of $5,000 against appellant, as damages resulting to the estate of Sanders from his death, alleged to have been caused by the negligence of appellant.

The first assignment of error challenges the sufficiency of the complaint, inasmuch as it "failed wholly to show that anyone beneficially interested in the estate of George W. Sanders had been pecuniarily damaged by reason of the alleged death of the deceased." This contention of appellant has been disposed of by us in Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 P. 401, and again in De Amado v. Friedman, 11 Ariz. 56, 89 P. 588; and we see no reason, in the light of appellant's discussion, to recede from the views we have heretofore expressed.

The second and third assignments of error are directed to the trial court's ruling in permitting certain hypothetical questions to be answered by physicians. The abstract of record sets forth the questions in full. They are lengthy and purport to recite facts in evidence upon which the opinions of the witnesses are sought. The record merely recites that the answers were received in evidence "over the objections of counsel for the defendant," without in any wise disclosing the grounds, if any there were, upon which the objections were based. We must assume from this record that the objections were general ones. General objections to such questions are wholly unavailing. Rush v French, 1 Ariz. 99, 25 P. 816. Counsel on either side, in their briefs, differ as to the form of the objections as actually made, and invite us to scrutinize several pages of the reporter's transcript. This we must decline to do. Our rules provide: "The abstracts of record, as filed, will be treated by the court as containing such portions of the record as the parties deem sufficient upon which to try the assignments of error." Subdivision 6, Rule 1 (8 Ariz. iv, 71 Pac. vi). We have so frequently commented upon the necessity of compliance with the requirements of our rules in this respect that there would seem to be no excuse for failure to do so. Liberty Mining & Smelting Co. v. Geddes, 11 Ariz. 54, 90 P. 332; Donohoe v. El Paso & S.W.R.R. Co., 11 Ariz. 293, 94 P. 1091; Title Guaranty & Surety Co. v. Nichols, 12 Ariz. 405, 100 P. 825, However, should we assume that counsel for appellant in their briefs have...