Southern Pac. Co. v. Wilson

Decision Date30 March 1906
Docket NumberCivil 945
Citation85 P. 401,10 Ariz. 162
PartiesSOUTHERN PACIFIC COMPANY, Defendant and Appellant, v. THOMAS F. WILSON, Administrator of the Estate of Hugh MacKenzie, Deceased, Plaintiff and Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. John H. Campbell Judge. Affirmed.

The facts are stated in the opinion.

Frank Cox, and Alfred Franklin, for Appellant.

In an action for wrongful death, a petition is fatally defective which discloses no survivor entitled by law to support by the person deceased, and in which with reference to such survivor as is described there is no averment of pecuniary injury. Chicago etc. Ry. Co. v. Van Buskirk, 58 Neb. 252, 78 N.W. 514; Chicago etc. Ry. Co. v. Bond, 58 Neb. 385 78 N.W. 710, 6 Am. Neg. Rep. 116; Hurst v. Ry. Co., 84 Mich. 539, 48 N.W. 44; Van Brunt v. Cincinnati etc. R Co., 78 Mich. 530, 44 N.W. 321; Charlebois v Gogebic etc. Ry. Co., 91 Mich. 59, 51 N.W. 812; Regan Admr. v. Chicago etc. Ry. Co., 51 Wis. 599, 8 N.W. 292; Stewart v. Terre Haute Ry., 103 Ind. 44, 2 N.E. 208, 21 Am. & Eng. Ry. Cas., p. 209; St. Louis etc. Ry. Co. v. Johnston, 78 Tex. 536, 15 S.W. 104; Swift & Co. v. Johnson, 138 F. 867, 71 C.C.A. 619, 1 L.R.A. (N.S.) 1161.

That the court erred in refusing to suppress the deposition of Hugh MacKenzie on motion of defendant, and erred in admitting same in evidence over defendant's objection, see: Cappeau v. Middleton, 1 Har. & G. 154; Maryland Ins. Co. v. Bossiere, 9 Gill & J. 121; Jones v. Oregon Cent. Ry. Co., 3 Sawy. 523, Fed. Cas. No. 7486; Walker v. Barron, 4 Minn. 253; Farrow v. Commonwealth Ins. Co., 18 Pick. 56, 29 Am. Dec. 564; Sayles v. Stewart, 5 Wis. 8; Allis v. Jewell, 36 Vt. 547; Farmers and Merchants' Bank v. Hathaway, 36 Vt. 538.

The amount of damage which the jury may deem a fair and reasonable compensation for loss sustained must be established by evidence. Anderson v. Chicago etc. Ry. Co., 35 Neb. 95, 52 N.W. 840; Huntington & B.T.R. etc. Co. v. Decker, 84 Pa. St. 419; Conant v. Griffin, 48 Ill. 410; March v. Walker, 48 Tex. 372.

Kingan & Wright, for Appellee.



-- The complaint in this action alleges that MacKenzie, while a passenger on a train of the defendant, met his death by reason of injuries received in a collision, and that such death was caused by the wrongful act, neglect, and default of the defendant; that at the time of his death the said MacKenzie left him surviving his father and other relatives, and that by reason of the premises the plaintiff, as administrator, has sustained damage to the estate in the sum of five thousand dollars. The demurrer of the defendant was overruled, and upon the trial upon the issues raised by the general denial of the defendant judgment was entered upon a verdict of the jury for the plaintiff in the sum of five thousand dollars. From this judgment, and an order denying a motion for a new trial, the defendant has appealed.

This action was brought, and has been maintained, upon the theory that under our statute damages for injuries resulting in death, occasioned by wrongful act, neglect, or default, are damages resulting to the estate of the decedent, and not to the beneficiaries; and that it is therefore not necessary in such case to allege and prove the existence of such beneficiaries, or to allege or prove the damages sustained by them. The correctness of this theory is the principal question presented for our determination upon this appeal. The statutes which have been adopted in the various jurisdictions in this country followed the enactment in England in 1846 of Lord Campbell's Act (9 and 10 Vict. 93), entitled "An act for compensating the families of persons killed by accidents." This act did not provide for a survival of a right of action for injuries which might have been maintained by the person injured, had he not died, but it created a new action dependent upon the death of the person, when such death was caused by such wrongful act, neglect, or default, as, had death not ensued, would have entitled the party injured to maintain an action. The act further provided that the action is for the exclusive benefit of the wife, husband, parent, and child of the person whose death is caused, to be brought, however, in the name of the executor or administrator of such person; and further, that the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties, respectively, for whom and for whose benefit such action is brought, to be divided among them in such shares as the jury may direct. The salient features of this act, therefore, are: 1. That it creates a new cause of action, and this action is for the death of the person injured; 2. That the action is for the exclusive benefit of certain designated members of the family of the deceased; 3. The damages recoverable are such as result to the beneficiaries from the death. Tiffany on Death by Wrongful Act, secs. 22, 23. In most of the jurisdictions in this country the first feature of Lord Campbell's Act has been preserved, and the action created therein is a new action. In a few states, however, this feature of Lord Campbell's Act has not been followed, but their statutes provide for a survival of the right of action which the person injured may have had during his lifetime, or would have had if he had survived the injury. About one half of the states in this country also follow in their statutes Lord Campbell's Act in its second feature, and provide that the action is for the benefit of certain designated persons. A number of other states, in preserving the third distinguishing feature of the act, also in effect adopt the second feature thereof, in that, although they do not directly provide that the action is for the benefit of certain designated persons, they provide that the damages to be recovered are such as shall have been sustained by certain designated persons, to whom they shall be distributed. Where the beneficiaries are named, or where the damages to be awarded are such only as the persons designated shall have sustained, the courts have universally held that there must be allegation and proof of the existence of such persons, and of the damages sustained by them. Indeed, the second and third features of the act are closely related and dependent upon each other, and where either one has been substantially preserved in the statutes the effect is the same with respect to the allegations and proof necessary to sustain the action as if both features were specifically set forth. In all such cases, as in the parent act, the action is for the benefit of certain designated persons, and the damage is the loss to them by reason of the death. Their existence and the loss to them must, therefore, necessarily be alleged and proved.

In a number of states, however, the statutes neither make mention of designated beneficiaries, nor provide that the damages recoverable are such as shall have been sustained by persons designated. In other words, they do not preserve either the second or the third features of the original act. Under such statutes the question that arises is whether, notwithstanding the failure to preserve in terms these features, the action is nevertheless one for the benefit of the family or next of kin, so as to require allegation and proof of their existence and the loss to them, as if they had been designated; or, in other words, whether the action is one for damages to beneficiaries or for damages to the estate. The materiality of the inquiry is evident, since it is apparent that the element of damages differs greatly in the two cases. In the one, the question is the amount of damage to the designated persons themselves by reason of the death; in the other, the amount of damages to the estate by reason thereof. As has been said, "that [the damage] to the estate is measured as nearly as can be by the value of the life lost, and that to the beneficiaries by the value of the life lost to them." Carlson v. Oregon Short Line, 21 Or. 450, 28 P. 497. In the one case, allegation and proof of the existence of the beneficiaries and the loss to them is necessary; in the other, such allegation and proof is unnecessary, the proof being directed to the loss to the estate. In the states whose statutes fall within the class last referred to, the courts quite generally have adopted the view that as the action is a statutory action purely, there is no reason to read into the statute any intendment not expressed therein; that in the absence of any designated beneficiaries, or any direction as to recovery by or distribution to such persons, the action must be held to be one for the benefit of the estate, rather than to the beneficiaries; and this, too, both when the act in terms provides that the damages shall be disposed of as property belonging to the estate, or be treated as assets thereof, and also when it does not in terms so provide, and where it is provided that the damages recovered shall not be subject to the debts of the deceased. James v. R. and D.R. Co., 92 Ala. 231, 9 So. 336; Perham v. Portland Electric Co., 33 Or. 451, 72 Am. St. Rep. 730, 40 L.R.A. 799, 53 P. 14, 24; Holmes v. O. and C. Ry. Co., (D.C.) 5 F. 523; B. and O. Ry. Co. v. Wightman, 29 Gratt. 431, 26 Am. Rep. 384; Madden's Admr. v. C. and O. Ry. Co., 28 W.Va. 610, 57 Am. Rep. 695; Warner v. R.R. Co., 94 N.C. 250; Roach v. Imperial Mining Co., (C.C.) 7 F. 698; Hedrick v. Ilwaco Ry. Co., 4 Wash. 400, 30 P. 714; Andrews v. C.M. and St. P. Ry., 86 Iowa 677, 53 N.W. 399; Givens' Admr. v. Kentucky C. Ry., 89 Ky. 231, 12 S.W. 257; Sutherland on Damages, 3d ed., sec. 1261; 13 Cyc. 343.

The appellant contends that the...

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