Roach v. Imperial Min. Co.

• Decision Date: 06 June 1881
• Citation: 7 F. 698
• Parties: ROACH, Adm'r, v. IMPERIAL MINING CO.
• Court: U.S. District Court — District of Nevada

7 F. 698

ROACH, Adm'r, v. IMPERIAL MINING CO.

United States Circuit Court, D. Nevada.

June 6, 1881

Lindsay & Dickson, for plaintiff.

B. C Whitman, for defendant.

HILLYER D.J.

This action is brought under a statute of Nevada requiring compensation for causing death by wrongful act, neglect, or default. The objections taken are--First, that the complaint is ambiguous and uncertain; second, that there is no allegation that the plaintiff's intestate left kindred named in the statute; and, third, that it is alleged that the injury caused the immediate death of the person injured, and there can be no recovery. In regard to the first point there certainly seems to be some ambiguity in the averments concerning the distance the cage fell in the shaft. The shaft is alleged to be 2,800 feet deep. The cable is alleged to have broken at the 1,100 foot level, while the cage was ascending with the plaintiff's intestate, from the 1,300 foot level, and to have fallen down the shaft, 'to-wit more than 300 feet.' From the 1,100 foot level to the bottom of the shaft is 1,700 feet. The complaint does not show what it was that arrested the cage, if it did not go to the bottom of the shaft, nor anything which explains the averment, 'to-wit, more than 300 feet.' If there is anything in the case making the distance the cage fell material, it ought to be made plainer so that the defendant can meet it. If not, the ambiguity can be removed by striking out the words above quoted. All that seems material to aver is that the fall of the cage caused the death. The two remaining points are based upon the language of the statute of Nevada (section 115, Comp. Laws, p. 39) entitled 'An act requiring compensation for causing death by wrongful acts, neglect, or default:'

'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: * * * 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.'

Under this statute there are two causes of action-- two grounds upon which a recovery can be had: one for the injury to the deceased, and one for the injury to the kindred named in the act. In the first case the jury may give such damages, pecuniary and exemplary, as they shall deem fair and just; and in the second may take into consideration the pecuniary injury to the kindred named in the act. The use of the words 'pecuniary and exemplary,' in the first clause of the proviso, and of the word 'pecuniary,' in the last, is significant, and shows that the legislature had both causes of action in view. Otherwise the last clause would serve no purpose. The statute of Nevada is different from any which has come under my observation in this particular, and it is evident that the draughtsman had in his mind certain expressions to be found in some of the cases, and intended to meet them by giving a right of action to the personal representative in which the rule of damages should be the same as it would have been if the deceased had lived and brought it, and in addition to permit the jury to consider the pecuniary loss to the kindred. This is further manifest from the fact that if there are none of the kindred named in the act, there may still be a recovery, and the amount will become general assets. It is evident that in those states in which the statute was construed to limit the measure of damages to the pecuniary loss of kindred, making that the only basis of a recovery, there was no escape from requiring an allegation that kindred were left, and the amount of damage suffered by them.

'We consider, upon the whole,' say the court in Safford v. Drew, 3 Duer, 640, 'that the only ground upon which the action can rest is the ground upon which the damages are to be recovered; that the prescription of the one ground or rule of damage has excluded every other, and thus rendered it indispensable, in order to support a suit under the statute, that pecuniary loss has resulted to the widow and next of kin.'

This same construction, applied to the statute before me, would, so far as the kindred named in the act are concerned, limit the recovery to the pecuniary injury they had sustained. But is it not evident that this would be saying that an added incident was the principal and only thing?

In my judgment the New York court could never have used the language quoted if it, had been construing the statute of Nevada. It could never have said that the pecuniary loss to the wife and next of kin constituted the sole cause of action-- the sole ground upon which the jury could base a verdict. What I have said indicates the result reached upon this point. Whatever the jury 'may take into consideration' must be stated in the complaint, for there cannot, properly, be any proof or any deliberation by the jury upon a cause of action not stated. It is not, however, in my opinion, indispensable to the plaintiff's complaint that it should state as a ground of recovery the pecuniary injury to the kindred. The complaint as it stands is sufficient in that it contains, in this particular, allegations touching the injury to the deceased upon which the plaintiff can recover. But if it is a fact that there are kindred of the degrees named in the act, and that they have sustained some pecuniary injury by the death, and if the plaintiff proposes to offer proof of those facts, they must be alleged.

The argument upon the part of plaintiff, however, seems to have proceeded upon the theory that because the amount of any recovery might become general assets under the statute, proof might be given of these facts without an averment to support it. This, I think, cannot be done without violating the old and just principle that the allegations and the proof must correspond. Upon this point I have consulted Blake v. The Midland Ry. Co. 10 Law. & Eq. 437; The City of Chicago v. Major, 18 Ill. 349; Chicago & Rock...