Smith v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 13 April 1895
• Citation: 62 N.W. 967,6 S.D. 583
• Parties: SMITH v. CHICAGO, M. & ST. P. RY. CO.
• Court: South Dakota Supreme Court

62 N.W. 967

6 S.D. 583

SMITH v. CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota

April 13, 1895

Syllabus by the Court.

1. In an action under the provisions of section 5499, Comp. Laws brought by a father, as administrator of the estate of his deceased son, who was of age, and who left no widow or child and who was killed by the negligence of a railroad company the father, if entitled to recover at all, was only entitled to recover such pecuniary damages as he sustained as such father (he being the only heir); and the charge of the court so instructing the jury, was not erroneous.

2. When, in such action, the only evidence as to the damage sustained by the father was that he (the father) was 64 years of age; that his son, at the time of his death, was over 28 years of age; that he had lived with the father since he attained his majority, except one year; and that he was strong, healthy, and a good laborer,--a verdict for nominal damages only will not be disturbed in this court on appeal.

Appeal from circuit court, Moody county; Frank R. Aikens, Judge.

Action by William B. Smith, administrator of the estate of Fred. A. Smith, deceased, against the Chicago, Milwaukee & St. Paul Railway Company, to recover for the death of decedent. From a judgment for plaintiff for one dollar, he appeals. Affirmed.

Lynn & Sullivan, Palmer & Rogde, and F. E. Gill, for appellant.

Winsor & Kittredge and H. H. Field (G. P. Cary, of counsel), for respondent.

CORSON P. J.

On the night of May 6, 1889, one Fred. A. Smith, an unmarried man, about 28 years of age, while acting as brakeman on defendant's railway, was killed in a collision between the freight train on which he was employed, as brakeman, and an empty freight car, that had, from some cause, left a side track, and run onto the main track, and which, it is alleged, was negligently left upon said side track, improperly and negligently secured. The said Fred. A. Smith left no widow or children, but a father, William B. Smith, who took out letters of administration upon his estate, and brings this action, as such administrator, to recover the sum of $20,000, as damages caused the estate by his death.

The complaint is in the usual form, and the answer is, in effect, a general denial, except as to the due incorporation of the defendant, which is admitted. The only allegation in the complaint necessary to be specially referred to is the following: "That deceased died insolvent, and left unliquidated debts and claims against his estate, and left surviving him an aged father and mother, largely dependent upon him for support." There is only one question presented by the record in this case for our consideration, and that is as to the measure of damages that the plaintiff was entitled to recover. The only evidence upon the subject of damages was that given by the plaintiff, and was, in substance, as follows: That he was the father of the deceased, and was 64 years of age; that his son, the deceased, was, at the time of his death, of the age of 28 years and 6 months; that deceased had lived with plaintiff, except about one year that he was absent in Montana; that physically deceased was strong and healthy,--a good laborer, and that at the time of his death he owed debts (amount not stated).

We shall assume, for the purposes of this decision, without deciding, that the action was properly brought by the plaintiff, as administrator, and that he was the only party beneficially interested in the verdict and judgment, as no objection to the form of the action was made by the defendant and respondent, and the plaintiff and appellant cannot be heard to question the regularity of his own proceeding in this court. We deem it necessary to make this statement, that it may not be assumed that we have decided that

the action was properly brought in the name of the administrator, or can be maintained by a father, as heir or administrator, when there is no widow or children.

This action was brought under the provisions of section 5499 of the Compiled Laws, which reads as follows: "If the life of any person or persons is lost or destroyed by the neglect, carelessness, or unskillfulness of another person or persons, company or companies, corporation or corporations, their or his agents, servants or employés, then the widow, heir, or personal representatives of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover damages for the loss or destruction of the life aforesaid." The court, in its charge to the jury, after reading to them the foregoing section, instructed them as follows: "That is, for the loss which has been occasioned to those who are dependent upon the deceased person,--the pecuniary loss which they have suffered by reason of his being taken away. At common law, which is the law known as the law distinguished from the statute of a state, no one could recover for the death of a person that was caused by negligence, for the reason that an action of that character--an action for tort or wrong and negligence is of that character--did not survive the person that was killed, and it was only under the statute that a recovery, under any circumstances, can be had. And I say to you, gentlemen, that it is the construction to be placed upon that statute that, in case the plaintiff in this action is entitled to recover, he can only recover for the loss that he himself (he being the sole surviving heir of the deceased person) has actually sustained by reason of the taking away of his son; that is, the pecuniary loss,--what has it taken away from him by way of support, if anything?" This portion of the charge was duly excepted to, and fairly presents the question as to the measure of damages in this class of cases. The learned counsel for the appellant contend that the plaintiff was not limited to such pecuniary damages only as he might be able to prove, but that, when it was shown that he was the father and the only heir, he was entitled to recover such damages as the jury might, in view of all the circumstances of the case, deem proper to give, taking into consideration the robust health, age, and industry of the young man, and the fact that the father had a reasonable expectation of pecuniary advantage, had the young man remained alive. The learned counsel for the respondent insist that the charge of the court was absolutely correct, and is sustained by the weight of authority, and that the verdict of the jury, under the evidence, could not have been other than it was.

In discussing the question involved in this case, it will be necessary to call attention to the fact that, as the section we have quoted originally stood in the Code of Civil Procedure, the word "damages," in the last line was preceded by the word "punitive," so that the section (677) originally read, "and recover punitive damages for the loss," etc. In 1887 the word "punitive" was stricken out. Section 1, c. 27, Laws 1887. This is an important fact, as showing the intention of the legislature to change the rule allowing a recovery for "punitive," exemplary, or vindictive damages, and to limit parties to a recovery for actual or compensatory damages only. In view of this action by our state legislature, in striking out the word "punitive" from the section, we think we are fully justified in holding that a party, under this section, can only recover actual or compensatory damages. The action is a new one given by the statute, and is in no sense a continuation of the right vested in the deceased in his lifetime. With his death his right to damages terminated, and the right did not survive, as part of his estate. The action given to the widow, heir, or personal representative is given to enable them to recover such damages as will compensate them for the loss of the life of the deceased, and not as a punishment to the defendant for its negligence. As often stated, the widow and heirs of persons whose lives have been lost by the negligence of others, at common law, were not permitted to recover for the loss of the life thus lost. However great that loss might be to widow, children, or heirs, the common law afforded them no relief. To remedy this apparent defect in the common law, the legislatures of most of the states have provided that actions might be maintained by certain relatives, to recover such damages as they have sustained in the loss of the life of one by whose death they have sustained actual pecuniary damages. Belding v. Railroad Co. (S. D.) 53 N.W. 750. The rule of...