Proper v. Lake Shore & M.S.R. Co.

• Decision Date: 19 April 1904
• Parties: PROPER et al. v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

99 N.W. 283

136 Mich. 352

PROPER et al. v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

April 19, 1904

Error to Circuit Court, Hillsdale County; Guy M. Chester, Judge.

Action by William E. Proper and another, as administrators of the estate of George W. Proper, deceased, against the Lake Shore & Michigan Southern Railway Company. From a judgment in favor of defendant, plaintiffs bring error. Affirmed.

W. J. Sampson and Grant Fellows, for plaintiffs.

C. E Weaver and Dallas Boudeman, for defendant.

HOOKER J.

The plaintiffs' intestate was instantly killed by the defendant's passenger train at a street crossing in the city of Jonesville. At the time he was driving in a buggy and his horse was struck when he had but just stepped his fore feet upon the track.

The action is case for negligence, and the case was left to the jury, who found a verdict for the defendant, and plaintiffs have appealed.

The claim was made by defendant's counsel upon the trial that the deceased supported the widow from interest earned by his accumulated property, and not from his personal earnings, and the judge was induced to charge:

'The present worth of such an amount of money as you are able to say, from all the evidence in the case, it is reasonably probable would have been contributed by the decedent, if he had lived, to the support of his wife from his earnings. * * * That his contributions, as before explained, are for the individual services which the husband renders the wife. They cannot be enlarged by the fact that the deceased had accumulated a considerable property, which the wife enjoyed with him, for she is entitled to enjoy a portion of such property whether he was dead or alive; and so the jury, if it finds for the plaintiffs, must be careful that it does not go out of the rule which the court has given, that the measure of the damages is the present worth of such contributions as the husband would have made from his individual services to the wife during her lifetime, as nearly as the same can be estimated. * * *

'You are also instructed that you should not base a verdict for damages in this case upon what Mr. Proper may have given to his wife out of the interest money on mortgages or other moneys which he had out at interest. The question for you, as far as it relates to damages, is, how much would Mr. Proper, had he lived, have contributed to his wife for her support out of his personal earnings?--not what he may have given her in the way of moneys which he had already accumulated, or what he may have given her for the purpose of making presents to their children or others, or what she may have received out of the income of the farm. The matters last mentioned have nothing to do with the question of damages. It is simply a question of how much Mr. Proper, during his lifetime, would have contributed from his personal labor to the support of his wife, and what is the present worth of such an account. Now, I have spoken of nothing from the farm. Of course, if you find that he earned anything by his services and work there on the farm, and contributed to those earnings of his own efforts to his wife, then she would be entitled to that portion of those earnings.'

Counsel for defendant now claim that, if this was erroneous, it was harmless, for the reason that under the testimony the jury must have found that a part of deceased's contributions were from his personal earnings, and that the fact that they did not give her any damages shows that they must have based their verdict upon some other ground, e. g., contributory negligence. There are cases where it can be said that questions relating to damages become immaterial, in view of a verdict which obviously must rest upon some other ground. If we can say that in this case, we may pass the point.

After discussing the questions of negligence and contributory negligence, the judge said to the jury: 'Then, gentlemen if, under the evidence in this case, and the instructions I have given you, you find for the plaintiffs, you come to the question of damages; and, if you come to the question of damages, gentlemen, you are instructed upon that question that plaintiffs, if entitled to recover, are entitled to damage to the extent of the pecuniary loss which the widow has sustained by the death of George W. Proper.' Then followed what has been already quoted. This charge nowhere directed the jury that they should render a verdict of not guilty if they should find that the widow received no support from deceased's personal earnings. It assumes that she received some such support, and it also makes the plaintiffs' right to recover depend upon the question of negligence and contributory negligence. Then he discussed the measure of damages, as already shown. In view of these directions, there is little reason to believe that the jury found an absence of contributory negligence, and defeated plaintiff solely because her support did not come from personal earnings of her husband. They could not reasonably have found the latter fact, under the proof, and they had received no intimation that it would...