Serensen v. Northern Pac. R. Co.
| Decision Date | 15 January 1891 |
| Citation | 45 F. 407 |
| Parties | SERENSEN v. NORTHERN PAC. R. CO. |
| Court | U.S. District Court — District of Montana |
The language of section 2 of the statute under which this action for negligently causing the death of plaintiff's intestate was brought is as follows:
'Every such action shall be brought by and in the name of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by the persons dying intestate; and in every such action the jury may give damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin, not exceeding the sum of $2,000: provided, that every such action shall be commenced within two years after the death of such person. ' Rev. St. Mont. 2879, p. 508.
Kinsley & Knowles, for plaintiff.
Cullen Sanders & Shelton, for defendant.
This is an action on the part of Andrew Serensen, as the legal representative of Niels Serensen, deceased, against the Northern Pacific Railroad Company, for damages for negligently causing the death of the said Niels Serensen. The cause was tried with a jury, who found a verdict for plaintiff, and assessed his damages in the sum of $1,750.
The defendant has moved the court for a new trial upon substantially the following grounds: (1) The complaint does not state facts sufficient to constitute a cause of action in this: there is no allegation in the same that the deceased had any next of kin, and there were no allegations therein of any damage said kin suffered on account of his death. (2) That the evidence did not warrant the jury in finding for the plaintiff more than nominal damages, and hence the verdict was contrary to and unsupported by the evidence in this particular.
The complaint fails to state that the deceased had any widow or next of kin. There was no claim that he left a widow. Should the plaintiff have set forth that the deceased left any next of kin surviving who might be entitled to receive any damages that might be recovered against defendant? The statute of Montana upon the subject of actions by personal representatives of deceased persons whose death was caused by negligence will be found on page 508, Rev. St. Mont. 1879. The statute of Illinois upon this subject will be found recited in the case of Railroad Co. v. Barron, 5 Wall. 90. A comparison of these two statutes will show that in words they are identical, save the Illinois statute permits a verdict for damages in such cases only in the sum of $5,000, while the Montana statute permits one for the sum of $20,000. The decisions of the supreme court of Illinois are uniform to the effect that a declaration in an action brought under this statute should set forth that the deceased left a widow or next of kin. Railroad Co. v. Morris, 26 Ill. 400; Railroad Co. v. Shannon, 43 Ill. 338; Coal Co. v. Hood, 77 Ill. 68; Holton v Daly, 106 Ill. 131. There may have been some wavering as to the correct rule in such actions in New York, whose statute the supreme court of Illinois, in Railroad Co. v. Morris, says is the same as the statute of its state. amount recovered in such cases goes to the widow and next of kin, or to that such allegations should be made. In Estee's Pleading, in section 1853, it is claimed that the later cases in New York have established a doctrine different from this, and he cites Quin v. Moore, 15 N.Y. 463; Oldfield v. Railroad Co., 14 N.Y. 316; Dickins v. Railroad Co., 28 Barb. 41; Keler v. Railroad Co., 17 How. 152. An examination of these cases will show that they do not support upon this point that claim. The case of Harper v. Railroad Co., 36 F. 102, is not in point. In that in West Virginia the administrator can recover, the case itself shows, if there were no widow or next of kin. The decision in that case was based upon the statute of that state. The case Of Howard v. Canal Co., 40 F. 195, does not, as I understand the case, maintain the doctrine claimed. But if it does, I cannot agree with the view that there should be no allegations in a complaint as to there being any widow or next of kin. Unless there be a surviving widow or next of kin, there is no one to whom the damages recovered for injuries resulting in death can go. The authorities generally agree that the amount recovered in such cases goes to the widow and next of kin, or to the next of kin to the exclusion of the creditors. Quin v. Moore, 15 N.Y. 436, 437; City of Chicago v. Major, 18 Ill. 348-358. It cannot be it was contemplated that in any case the personal representative might recover a judgment for injuries resulting in death, and then afterwards institute an inquiry as to whether or not there was any one entitled to the amount recovered on this judgment. If it is necessary to prove on the trial there is a widow and next of kin, this fact should be alleged. Certainly the defendant would have the right to controvert this fact.
The complaint was fatally defective in not stating that there were next of kin of the deceased, in my opinion. It is urged, however, that there was evidence of next of kin introduced in this case, and that this defect was cured by the verdict. The defendant, however, objected to the introduction of this evidence, and has embodied his exception in his bill of exceptions. Where material evidence is introduced under the objection of the party against whom the same is offered, and it was error to have admitted the same, the rule urged by the plaintiff does not apply. Neither do I think a defendant is bound to exercise his objection to a defective complaint by demurrer. The plaintiff is responsible for his pleadings and its defects, and not the defendant. The civil practice act of Montana says the objection that a complaint does not state facts sufficient to constitute a cause of action is not waived by a failure to demur to the same.
The next point for consideration is as to whether there should have been alleged in the complaint special damages to the next of kin of the deceased; in other words, should the complaint have shown that the next of kin suffered a pecuniary loss on account of the death of the deceased? I think the case of Railroad Co. v. Barron, 5 Wall. 90, must be considered as having settled that question, as far as the federal courts are concerned, in the negative. In that case Justice NELSON, speaking for the court, said:
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