Steckman v. Silver Moon, Inc.

• Decision Date: 21 May 1958
• Docket Number: No. 9640,9640
• Citation: 77 S.D. 206,90 N.W.2d 170,64 A.L.R.2d 1171
• Parties: , 64 A.L.R.2d 1171 Leola STECKMAN, Special Administratrix of the Estate of Ernest Steckman, Deceased, Plaintiff and Appellant, v. SILVER MOON, Inc., a Corporation, William P. Gese, Defendants and Respondents, and Ronald Mondini, Defendant.
• Court: South Dakota Supreme Court

Page 170

90 N.W.2d 170

77 S.D. 206, 64 A.L.R.2d 1171

Leola STECKMAN, Special Administratrix of the Estate of Ernest Steckman, Deceased, Plaintiff and Appellant, v. SILVER MOON, Inc., a Corporation, William P. Gese Defendants and Respondents, and Ronald Mondini, Defendant.

No. 9640.

Supreme Court of South Dakota.

May 21, 1958.

Campbell, Voas & Richardson, Vernon Williams, Aberdeen, for plaintiff and appellant.

Agor, Bantz & Siegel, Aberdeen, for defendants and respondents.

ROBERTS, Judge.

Plaintiff is the special administratrix of the estate of her deceased husband, Ernest Steckman. Plaintiff sought damages in the sum of $20,000 for death by wrongful act and an additional sum of $26,100 for pain and suffering of decedent.

Defendants moved for a directed verdict at the close of plaintiff's case on the grounds (1) that there was no evidence that defendants were guilty of negligence; (2) that the contributory negligence of the decedent barred recovery; and (3) that plaintiff was without authority as special administratrix to commence an action for wrongful death.

The court granted the motion and directed the jury to return a verdict in favor of the defendants. Plaintiff appeals from the judgment entered thereon.

Ernest Steckman, 38 years old, a resident of Minneapolis, Minnesota, had been employed by a contracting company for about six years. He had been working several weeks on a construction job in Aberdeen, South Dakota, and during that time had a room at the YMCA. Defendant Ronald Mondini also resided at the YMCA. During the evening of February 3, 1953, defendant Mondini was invited to decedent's room to listen to a radio broadcast of a basketball game and during such visit decedent had at least one drink of whiskey. Defendant Mondini left the YMCA alone about 10 o'clock that evening and stopped at the Silver Moon bar where he was joined by decedent. They did further drinking at two other bars. Sometime after 11:30 o'clock p. m. decedent returned to the Silver Moon bar and soon thereafter defendant Mondini entered and an argument immediately followed. Others present at the time were defendant William P. Gese, managing officer of the Silver Moon, Inc., and Joe and Irene Gese, brother and sister-in-law of defendant Gese. When a fight between Mondini and decedent started, defendant Gese said to them that if 'they wanted to fight they would have to get out.' When defendant Gese later saw the participants standing in front of his place of business, he switched off the front light, put on his coat and followed them outside for the reason as he testified that he 'was concerned about their stopping in front' of his place of business and 'didn't want either one of them to get picked up.' In an exchange of blows between decedent and defendant Mondini, decedent was knocked down and struck his head on the sidewalk. Defendants Gese and Mondini assisted him into the Silver Moon bar and by application of cold towels to his head stopped his nose from bleeding.

There was not much dispute as to the facts stated above. Witnesses disagreed as to decedent's physical condition after the fight. Defendant Gese testified: 'I left the Silver Moon with Mr. Steckman and Mr. Mondini. We went up to the 'Y'. * * * Deceased probably could have walked by himself. He walked with his head up and his legs were moving.' A witness who observed defendants taking decedent to his hotel room testified that decedent was walking, but this was in contradiction of his signed written statement given before trial to the effect that decedent 'was definitely dead weight * * * with his head down * * * and needed help.' Defendant Mondini procured a key at the desk and unlocked the door to decedent's room. Defendants assisted decedent in removing part of his clothing, put him to bed and there is contradictory evidence as to whether or not defendants when they left locked the door. Decedent was on the floor when found about eight o'clock next morning, and 'his head was at the foot of the bed * * *, face down, his face was in some blood.' He was taken to a hospital where during the day he died.

The attending physician testified that the cause of death 'was hemorrhage into the brain' caused by a 'laceration and fracture of the brain and fracture of the skull'; that there were cuts and bruises on the face; that a fracture line apparently starting under the bruise behind the left ear proceeded to the level of the ear, over the top of the temporal bone and over the top of the eye; and that a fracture 'branched off and into the center of the skull, the part that contains the pituitary gland.'

The right of action for the death of another was unknown at common law. Ulvig v. McKennan Hospital, 56 S.D. 509, 229 N.W. 383; Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280. SDC Supp. 37.2201 provides that whenever the death of a person is caused by the wrongful act, neglect or default of another, damages may be recovered in an action by the personal representative. The statute is remedial and not punitive and allows recovery for the benefit of those specified therein as beneficiaries. Pain and suffering of a deceased injured person is not an injury resulting from death nor injury to the beneficiaries for which recovery is permitted by this statute. Simons v. Kidd, 73 S.D. 41, 38 N.W.2d 883.

Plaintiff administratrix contends that defendants having assumed charge of an injured person were bound to exercise reasonable care and that the breach of this duty constituted a wrongful or negligent act. The rule on which plaintiff principally relies is expressed in the following quotation from the Restatement of the Law of Torts, § 324: 'One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge; (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.'

Comment c under the same section reads: 'The rule stated in this Section relates to the conditions necessary to subject the actor to liability for the bodily harm of another under the conditions stated. The bodily harm of which the actor's conduct is a legal cause may be either an actual increase in his injuries due to the improper manner in which the actor acts in giving the aid or protection, or it may be an aggravation of the original harm which would have been avoided had the actor acted with reasonable care for the other's safety.'

In Carey v. Davis, 190 Iowa 720, 180 N.W. 889, 892, 12 A.L.R. 904, it appeared that plaintiff, a laborer working in a gravel pit, was stricken by heat and rendered helpless and that his employer caused him to be removed while still unconscious to a place where the injured person was exposed to increased heat and discomfort and there abandoned for several hours. The court said: 'One person seeing another in distress may or may not be under legal obligation to afford him relief, but, if he does undertake it, he is, of course, bound to act with reasonable prudence and care to the end that, if his effort be unavailing, it shall at least not operate to increase the injury which he seeks to alleviate.' Northern Central Railway Co. v. State, 29 Md.420 96 Am.Dec. 545, a leading case, is illustrative of the application of the rule. It appears from the facts in that case that a man in an unconscious condition was taken from the pilot of an engine. He was laid on a plank in a warehouse and left there alone all night. He revived during the night and had moved several paces from where he was laid. There was testimony to the effect that he probably regained consciousness whereupon his blood began to flow and that the loss of blood caused his death. The defendant company was held liable for the failure of its agents in not properly caring for the injured person after undertaking to assist him. In Dyche v. Vicksburg, S. & P. R. Co., 79 Miss. 361, 30 So. 711, defendant undertook to convey plaintiff to a hospital. It was held that while defendant railroad company was not liable for the initial injury it having taken charge of the injured person owed him the duty of reasonable care and that unreasonable delay in securing medical attention constituted actionable negligence. The case of Depue v. Flateau, 100 Minn. 299, 111 N.W. 1, 8 L.R.A.,N.S., 485, though dissimilar in the facts, lends support to the rule...