Umphrey v. Deery

• Decision Date: 24 July 1951
• Docket Number: No. 7222,7222
• Citation: 48 N.W.2d 897,78 N.D. 211
• Parties: UMPHREY v. DEERY
• Court: North Dakota Supreme Court

Page 897

48 N.W.2d 897

78 N.D. 211

UMPHREY v. DEERY

No. 7222.

Supreme Court of North Dakota.

July 24, 1951.

Rehearing Denied Aug. 21, 1951.

Syllabus by the Court.

1. In an action brought pursuant to the provisions of NDRC 1943, Ch. 32-21 to recover damages for wrongful death it is the duty of the jury to 'give such damages as it finds proportionate to the injuries resulting from the death to the persons entitled to the recovery.'

2. In such action the jury may not give damages for a mere sentimental loss but it is not restricted to the immediate loss of money or property, and damages may be awarded for the loss of any benefit or advantage which is capable of being estimated in money as distinguished from a mere sentimental loss.

3. In an action for the benefit of the surviving wife and surviving minor children for the wrongful death of the husband and father who had been discharging his obligation to support his wife and children and was discharging such obligation at and immediately prior to his death, it will be presumed that such surviving wife and surviving minor children sustained a substantial pecuniary loss from the death of the husband and father.

4. Among matters that are proper subjects of proof and for consideration by the jury in the assessment of damages in an action brought for the benefit of the surviving wife and minor children for the wrongful death of the husband and father are the characteristics and habits of the deceased, such as his age, health, life expectancy, condition of life, habits of industry and sobriety, mental and physical capacity, disposition to frugality, opportunities and customary earnings of the deceased and the use he made of them.

5. For the reasons stated in the opinion it is held, that in this case the trial court ruled correctly in denying:--(1) defendant's motion to dismiss the action (2) defendant's motion for a directed verdict, and (3) defendant's motion for judgment notwithstanding the verdict.

6. For reasons stated in the opinion it is held that evidence was admissible to show what transpired immediately after and at the time and place of the collision and the then condition of the deceased.

7. Where a party fails to object to a question when asked his subsequent motion to strike out the answer that is made to the question is not a matter of right but such motion addresses itself to the discretion of the court.

8. In an action to recover damages for wrongful death evidence as to the income of the deceased, during the year immediately preceding his death, from farm products raised by the deceased and resulting principally from his own labor and efforts was admissible to throw light on the quality and value of the earning capacity of the deceased.

9. Assignments of error upon the instructions given to the jury are considered and for reasons stated in the opinion held to be without merit.

10. In the absence of request for an appropriate instruction the failure of a trial court to instruct the jury does not constitute prejudicial error. In such case failure to instruct can be urged as error only if in the light of the evidence the nondirection constitutes misdirection.

11. Where a motion for a new trial is made in the district court ruling of the trial court constituting grounds for a motion for a new trial must be so presented otherwise they will be deemed waived and upon appeal the moving party is limited to review of the grounds of the motion as presented to the district court.

12. A contention that the trial court erred in failing to give a certain instruction cannot be raised for the first time on appeal.

13. In an action to recover damages for wrongful death the jury is vested with wide discretion in fixing the amount of damages, and to justify interference by the court with a verdict of the jury in such case it must appear that some rule of law has been violated or that the verdict is so excessive as to indicate passion or prejudice in the minds of the jury.

14. In this case it is held that under the facts in the case a verdict for $32,000 in favor of the surviving wife and six minor children, 14 years, 12 years, 10 years, 6 years, 4 years and 6 months old, respectively, for the wrongful death of the husband and father is not so excessive as to indicate passion or prejudice and the court may not set aside or reduce such verdict on the ground of excessiveness.

Hyland & Foster, Bismarck, for appellant.

George S. Register, Bismarck, for respondent.

CHRISTIANSON, Judge.

This is an action to recover damages for the wrongful death of William F. Umphrey. The plaintiff, Pearl Umphrey, is the widow of William F. Umphrey. In the complaint it is alleged that William F. Umphrey died intestate in Bismarck on or about July 22, 1949, 'leaving surviving him as his sole heirs at law, said Pearl Umphrey, and the following named children: Kenneth Umphrey, John Umphrey, Luther Umphrey, Alberta Umphrey, William Umphrey, Jr., and Angeline Ann Umphrey; that this action is brought by said plaintiff as said surviving wife, for the use and benefit of herself and said surviving children, pursuant to the provisions of Chapter 32-21 of the North Dakota Revised Code of 1943.' It is further alleged 'that on or about July 20th, 1949, at about 6:30 o'clock P.M., said William F. Umphrey was driving his Ford automobile on United States Highway No. 10, near Sterling, North Dakota, in an easterly direction, in a careful and prudent manner and at a moderate rate of speed. That, at said time, the defendant herein was driving a Dodge automobile, on said highway, in an easterly direction, behind the said Ford automobile. That, at said time and place, the said defendant drove and operated the said Dodge automobile so negligently, carelessly and unlawfully, as to cause the said Dodge automobile to collide with the said Ford automobile, on said highway. That as the direct result of the said collision, and because of the negligence and carelessness of the defendant, the said Ford automobile was pushed, shoved, and caused to leave said highway, and overturn, and said William F. Umphrey received and suffered serious personal injuries from which injuries the said William F. Umphrey died. The aforesaid collision and the resulting injuries to the death of said William F. Umphrey, were directly and proximately caused by the negligence, carelessness, wrongful acts, neglect and defaults of the defendant, as follows: The defendant was careless and negligent in that he was driving the said Dodge automobile at an excessive rate of speed under the existing circumstances; he failed to keep a proper lookout; he failed to give any audible warning with his horn or other warning device upon approaching the said Ford automobile; he followed the said Ford automobile more closely than was reasonable and prudent under the existing circumstances; he failed to have his said automobile under proper control, and drove the same into, against and upon the said Ford automobile; he drove the said Dodge automobile without due caution and circumspection; and was in other respects generally careless and negligent in the operation of the said Dodge automobile.'

It is further alleged that at the time of the said collision the said William F. Umphrey was maintaining a home for and supporting and living with the said surviving wife and surviving children and that said surviving wife was then dependent upon William F. Umphrey for support and maintenance and each one and all of said children were then dependent upon said William F. Umphrey for support, maintenance and education. That the funeral expenses incurred in and about the burial of said deceased was approximately $550. That by reason of the premises, plaintiff has sustained and suffered damages and injury in the sum of $100,550.00.

In his answer the defendant denied the allegations of the complaint and alleged as a further defense 'that on or about July 20, 1949, at about 6:30 P.M. he was driving a Dodge automobile in an easterly direction on United States Highway No. 10 near Sterling, North Dakota. That at said time and place he was driving his automobile at the legal rate of speed on the right hand side of the highway and to the right of the middle line thereof and was driving and operating his automobile in a careful and prudent manner with due regard for the conditions of the highway and the traffic thereon.' That at said time and place the said William F. Umphrey was driving and operating a Ford automobile in an easterly direction on said highway and was operating said automobile at the speed of approximately fifty miles per hour and that as the automobile of the defendant approached the automobile driven by said Umphrey, the said Umphrey without giving any signal suddenly checked the speed of his automobile on said highway to a stop or almost a stop. That the defendant, upon observing the automobile of the said William F. Umphrey, signalled by sounding his horn and attempted to turn to his left so as to pass the said automobile, but the said William F. Umphrey, disregarding the signal by the horn, failed and neglected to move his automobile to the right so as to afford room for passing and slowed or stopped his said automobile immediately ahead of the automobile of the defendant, not affording the defendant sufficient space in which to go around the automobile of the said William F. Umphrey, causing the automobile of the defendant to collide with the rear end of the automobile of the said William F. Umphrey and being driven by him, and that if any injury resulted to any person or property by reason of said collision that the same was caused by and was the sole result of the negligent operation of the Ford automobile operated by William F. Umphrey and that the negligence of the said William F. Umphrey contributed to the said injuries if any.

The case was tried to a jury upon the issues framed by such pleadings. The jury returned a verdict...