The Louisville, New Albany And Chicago Railway Co. v. Rush

• Decision Date: 19 March 1891
• Docket Number: 14,894
• Citation: 26 N.E. 1010,127 Ind. 545
• Parties: The Louisville, New Albany and Chicago Railway Company v. Rush
• Court: Indiana Supreme Court

26 N.E. 1010

127 Ind. 545

The Louisville, New Albany and Chicago Railway Company v. Rush

No. 14,894

Supreme Court of Indiana

March 19, 1891

From the Carroll Circuit Court.

Judgment affirmed, with costs.

C. C Matson and E. C. Field, for appellant.

E. P Hammond, W. B. Austin, C. R. Pollard and R. C. Pollard, for appellee.

OPINION

Olds, C. J.

On the 21st day of September, 1887, the appellee's daughter then nearly seven years of age, was struck and killed by appellant's train of cars, at Monon, Indiana. The appellee brought this suit, and recovered a judgment for damages. From this judgment the appellant appeals, assigns, and discusses three alleged errors. The first is that the court erred in giving the following instructions to the jury:

"In estimating the plaintiff's damages the jury may consider the condition of his family at the time of the alleged accident, and take into account all the services that his child, alleged to have been killed, might reasonably have performed in his family until she attained her majority, and such services may include actual labor in helping to carry on the household affairs, and the pecuniary value of all acts of kindness and attention which might reasonably be anticipated that she would have performed for the plaintiff and his family, until her majority, that would administer to their comfort, as well as to their necessities; but the jury should not consider acts of affection, simply, and loss of companionship. The recovery is limited by the law to the actual pecuniary loss."

The court, at the request of the appellant, also gave to the jury another instruction upon the same subject, which must be considered in connection with the one complained of. The additional instruction given reads as follows:

"In any form of verdict you may adopt you are required to state in writing such sum of money as you assess the plaintiff's damages at in the event that he may, under the law, be entitled to recover under the facts as found by you. I, therefore, instruct you that in estimating and considering the amount of such damages you can only take into consideration the pecuniary injury, if any, that the plaintiff has sustained by the loss of services of the deceased from the time of her death until she would have reached the age of twenty-one years, if she had lived. In other words, the proper measure of damages is the pecuniary value of the child's services from the time of her death until she would have attained her majority, taken in connection with her prospects in life, less her support and maintenance. You are not at liberty to consider the fact, if it be a fact, that the plaintiff has been deprived of the happiness, comfort and society of his daughter, nor can you consider any physical or mental suffering or pain which may have been incurred by the plaintiff or his family, or the deceased child, by reason of the injuries described in the complaint. You are simply to estimate the value of the child's services to the plaintiff from the time of her death until she would have attained her majority, less the cost of her support and maintenance, including clothing, boarding, schooling and medical attendance."

The instruction given by the court, on its own motion, when read in connection with the other instruction given, we do not think is erroneous.

It is urged that the jury has no right to take into consideration the condition of appellee's family in estimating his damages.

The appellee is entitled to recover for the pecuniary loss sustained on account of the death of the child. It is the pecuniary loss sustained by the father that the jury have to estimate and fix a value upon. The jury can not rationally estimate and determine the amount of this loss without considering the condition of the appellee's family with respect to and use for the child. This was what the jury were considering, and the instruction, taken in connection with the other instruction on the same subject, did not infer that the condition of the family should be taken into account except in relation to and bearing upon the value of the child's services.

The conditions of appellee's family might have been such that the services of the child would be of no value to him, or they might have been such as to have been very valuable.

In the case of Citizens Street R. W. Co. v. Twiname, 121 Ind. 375, 23 N.E. 159, the wife of the appellee was engaged in managing a millinery business for her husband without charge to him, and it was held that it was proper to admit evidence of the value of the services of the wife in the capacity in which she served her husband; that the husband was entitled to recover for the damages sustained on account of the loss of the services of the wife, and the value of her services and loss sustained by reason of her inability to perform them depended on the character and value of the services which she was capable of performing and accustomed to perform for her husband. Pennsylvania Co. v. Lilly, 73 Ind. 252.

The instruction also states that the jury may consider "the pecuniary value of all acts of kindness and attention which might reasonably be anticipated that she would have performed for the plaintiff and his family until her majority that would administer to their comfort as well as to their necessities."

The jury are expressly told in this instruction that they shall not consider acts of affection simply, and loss of companionship, and this admonition and express prohibition from considering mere acts of affection, companionship, happiness, comfort and society of the child which the appellee has been deprived of by the loss of the child, are repeated and stated more definitely in the other instruction, and they are further told they shall not consider any mental anguish suffered on account of the death of such child.

Under these instructions all that the words "pecuniary value of all acts of kindness and attention" could be...