Swift & Co. v. Johnson

• Citation: 138 F. 867
• Decision Date: 24 June 1905
• Docket Number: 1,991.
• Parties: SWIFT & CO. v. JOHNSON.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

138 F. 867

SWIFT & CO. v. JOHNSON.

No. 1,991.

United States Court of Appeals, Eighth Circuit.

June 24, 1905

Robert E. Olds (Frank B. Kellogg, C. A. Severance, Alfred H. Veeder and Henry Veeder, on the brief), for plaintiff in error.

S. C Olmstead, for defendant in error.

This was an action by an administratrix, on behalf of the next of kin, to recover damages for the death of her intestate. There was substantial evidence tending to show that the death resulted from an injury caused by the negligence of the defendant, which would have given the deceased a right of recovery, had he lived. The injury and death occurred at South St. Paul, Minn., March 13, 1903. The deceased was about 17 years of age, and left surviving him a father, aged 38 or 39 years, a mother, and a younger sister, but no widow or child. In 1896 the father informed the mother that she must go out washing, and that he would not provide for her or the children. He then separated from them, and did not thereafter contribute anything to their support or have any communication with them, save that on one occasion he inquired of the son if he liked the work which he was doing and told him to be good, and on another occasion gave him 50 cents. After the separation the children lived with the mother, who for the next three or four years supported them and herself by the proceeds of such employment as she could obtain. She then obtained a divorce and married again, the children continuing to live with her as before. From about that time the son had regular employment, and gave all of his earnings to his mother, who used them chiefly in supporting the children. At the time of his death he was earning $45 per month. He was a strong and industrious lad, of fair education for one of his opportunities, and with a strong affection for his mother and sister. The only evidence respecting the son's disposition toward his father was this: The mother testified: 'I don't know if he gave him anything. I don't know; but he said, if his father was in need of anything, he should give him a dollar. ' 'He would very seldom speak of him. He always said, if his father was in need of anything he would give him something. ' And another witness, intimately acquainted with the family, and who had seen the son frequently, testified: 'Q. Did you ever hear him express his feelings toward his father? A. Not until I spoke about how destitute his father was, and that I had got him some things. He said he would always carry money in his pocket, and, if he ever met his father, he would offer him money, if he would take it. ' When the father separated from the family he was a saloonkeeper at South St Paul, was greatly addicted to the excessive use of liquor, and when intoxicated was inclined to use harsh and unkind language toward his wife and children. He was improvident and squandered whatever came into his hands. In 1901 he was still in South St. Paul, but doing nothing. In the spring of 1902 he was in destitute circumstances at Hastings, Minn., where he obtained employment until November of that year, when he received about $200 in wages, and went away with the purpose to engage in the saloon business elsewhere. What became of him after leaving Hastings is not shown. During his employment at that place he remained sober, and was heard to speak affectionately of his children, but he did nothing toward resuming his parental duties, or toward restoring between himself and his children the natural and usual relations of parent and child. It does not appear that he took any interest in the prosecution of the action by the administratrix, or that he even knew of the death of the son. There was a verdict and judgment for plaintiff for $2,500, which defendant seeks to have reversed upon this writ of error.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

VAN DEVANTER, Circuit Judge, after stating the case as above, .

The principal questions presented upon this record are: (1) For whose benefit was the action maintainable? (2) What was the proper measure of recovery?

By the common law no action lies for an injury resulting in death, but the state of Minnesota, like most or all of the other states, has enacted a statute, modeled after Lord Campbell's act in England, which modifies the common-law rule, and authorizes the maintenance of such an action. Gen. St. 1894, Sec. 5913. Being entirely statutory, the action can be maintained only for the benefit of the persons specified in the statute, and then only for the recovery of such damages as are contemplated by it. Nash v. Tousley, 28 Minn. 5, 8 N.W. 875; Scheffler v. Minneapolis & St. Louis Ry. Co., 32 Minn. 125, 19 N.W. 656; St. Louis, Iron Mountain & Southern Ry. Co. v. Needham, 3 C.C.A. 129, 52 F. 371; Western Union Telegraph Co. v. McGill, 6 C.C.A. 521, 57 F. 699, 21 L.R.A. 818; Sanders v. Louisville, etc., Co., 49 C.C.A. 565, 111 F. 708. Repeated and uniform decisions of the highest court of the state have given to the statute a settled meaning and effect, which may be summarized as follows: The right of action which the statute creates is for the exclusive benefit of (a) those who have demands for the support of the deceased during the time, if any, intervening between his injury and his death; (b) those who have demands for his funeral expenses; and (c) the widow and next of kin. The damages recoverable for the benefit of the widow and next of kin are confined to compensation for their strictly pecuniary loss, excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors, and suffering of the deceased; and the extent of the loss is to be determined solely with reference to the pecuniary benefit reasonably expected by the widow and next of kin, as of legal right or otherwise, from the continued life of the deceased. Shaber v. St. Paul, Minneapolis & Manitoba Ry. Co., 28 Minn. 103, 107, 9 N.W. 575; Scheffler v. Minneapolis & St. Louis Ry. Co., 32 Minn. 518 21 N.W. 711; Robel v. Chicago, Milwaukee & St. Paul Ry. Co., 35 Minn. 84, 89, 27 N.W. 305; Bolinger v. St. Paul & Duluth R. Co., 36 Minn. 418, 31 N.W. 856, 1 Am.St.Rep. 680; Hutchins v. St. Paul, Minneapolis & Manitoba Ry. Co., 44 Minn. 5, 9, 46 N.W. 79; Gunderson v. Northwestern Probate Court of Dakota County, 51 Minn. 241, 53 N.W. 463; Sykora v. Case Threshing Machine Co., 59 Minn. 130, 60 N.W. 1008; Sieber v. Great Northern Ry. Co., 76 Minn. 269, 275, 79 N.W. 95; Foot v. Great Northern Ry. Co., 81 Minn. 493, 84 N.W. 342, 52 L.R.A. 354, 83 Am.St.Rep. 395. As a matter of pleading, it is also settled by the decisions of the state court that a complaint does not show a right of recovery in respect of a widow or next of kin unless it alleges (stating names and how related) that the deceased left a widow or next of kin, who are entitled to compensation, and does not show a right of recovery in respect of demands for the support of the deceased or for his funeral expenses unless it alleges that there are such demands. Schwarz v. Judd, 28 Minn. 371, 10 N.W. 208; Sykora v. Case Threshing Machine Co., supra; Barnum v. Chicago, Milwaukee & St. Paul Ry. Co., 30 Minn. 661, 16 N.W. 364.

The deceased left no widow or child, but was survived by a father, mother, and younger sister. In these circumstances, the statutes of the state make the father the sole next of kin. Gen. St. 1894, Sec. 4477, cl. 6; Id., Sec. 4471, cl. 3. The complaint contains no allegation of the existence of any demand for the support of the deceased between his injury and his death, or for his funeral expenses, and no evidence upon that subject was offered at the trial. The action was maintainable, therefore, exclusively for the benefit of the father, and without any regard to the loss sustained by the mother or sister, because as respects their loss no right of recovery exists by the common law or by the statute.

It is said in the brief of counsel for the administratrix:

'It is not questioned upon the trial, and is not questioned now, that a surviving father is the next of kin to his child, under the statutes of the state of Minnesota, and that the damages recoverable are to be regarded as wholly compensatory for the father's pecuniary loss.'

But this statement is not fairly sustained by the record. The complaint alleges:

'That at the time of his death said Charles Benson was an infant of the age sixteen years on the 6th day of April, 1902. That he was unmarried, and left surviving him his father, August Benson, and his mother, Mathilda Johnson. That his said father and mother, and each of them, have been damaged by and through the death of said Charles Benson in the sum of five thousand dollars.'

And among the things occurring at the trial were these:

The plaintiff, over the defendant's objection, was permitted to introduce evidence of the mother's expectation of life. The defendant sought to show what had become of the father after his separation from the family, and in ruling upon the plaintiff's objection thereto the court observed:

'Generally the 'next of kin' means nearest of blood, and there certainly could be no person nearer to the plaintiff than his mother; and if the authority cited by the judge in the case (Thompson v. Chicago, etc., Co. (C.C.) 104 F. 845) which I refer to is correct-- that the father has ceased to have any right to the services of the son while the latter remains a minor, but that the mother, from the fact that she continues to perform her parental duties, is entitled to his services-- it seems to me as though that ought to place her in the condition or position with reference to the child which the father has given up and surrendered. But it is not the duty of this court to distribute, or to indicate what should be the proper

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