Webb v. Denver & R.G.W. Ry. Co.

• Decision Date: 28 July 1890
• Citation: 7 Utah 17,24 P. 616
• Parties: ALBERT T. WEBB, ADM'R, RESPONDENT, v. THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT
• Court: Utah Supreme Court

24 P. 616

7 Utah 17

ALBERT T. WEBB, ADM'R, RESPONDENT, v. THE DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

July 28, 1890

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Reversed.

1 See Openshaw v. Utah and Nevada Ry. Co. 6 Utah 132.

Messrs Bennett, Marshall and Bradley and Mr. R. Harkness, for the appellant.

Mr. J L. Rawlins, for the respondent.

ANDERSON, J. HENDERSON, J., and BLACKBURN, J., concurred.

OPINION

ANDERSON, J.:

This is an action against the defendant for negligently causing the death of plaintiff's decedent, a car inspector and repairer in its employ, while engaged in assisting a brakeman in coupling a car that was out of repair to another car, by means of a chain, in order that the broken car might be set out on a side track for repairs. The case was tried before a jury, which rendered a verdict for plaintiff for $ 4,995. The defendant moved for a new trial, which was overruled, and it appealed from the order overruling the motion, and from the judgment. At the trial, counsel for defendant requested the court to instruct the jury to make special findings on certain questions of fact, which the court refused to do, and this refusal is assigned as error. Section 3374, 2 Comp. Laws 1888, provides that, "in an action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon." It was within the discretion of the court, whether it would direct the jury to make special findings or not, and it was not error to refuse to do so. The court gave to the jury the following instruction: "(10) If the jury find in favor of the plaintiff, such damages may be given as, under all the circumstances of the case, may be just, not exceeding the amount claimed in the complaint." It is contended that this instruction is too general, and should have stated the rule as to the measure of damages more explicitly. Excepting the last clause, the instruction is in almost the exact language of the statute. But whether it is fairly open to the criticism made or not, the objection urged against it is obviated by the next instruction, it being a familiar rule that all the instructions given are to be construed together. The next instruction is as follows, to-wit: "(11) In estimating the loss sustained by the plaintiff as administrator and the mother of said deceased, who is his heir, you have a right to take into consideration, not only the pecuniary value of his services and support to her during her life, if he had lived, but the social and domestic relations of the parties, their kindly demeanor, or the lack of it, toward each other, the loss which the mother may sustain in being deprived of the society, aid, and care of her son, as well as the mental pain and suffering caused to her by his death, as may appear from the evidence, in estimating what damages under all the circumstances of the case may be just." Counsel for defendant insist that this instruction is erroneous, in so far as it authorizes the jury to take into consideration the mental pain and suffering caused to the mother of the deceased by his death.

At the common law the right of action for a personal injury, whether it produced death or not, was terminated by the death of the injured party. Broom. Leg. Max. 400, 401; Whit. Smith, Neg. 430; 3 Suth. Dam. 281; 1 Shear. & R. Neg. § 124. But in England this rule was abolished in 1846, by what is commonly called "Lord Campbell's Act," (9 and 10 Vict. c. 93,) and which has been adopted in substance by most of the States of this Union as well as by this Territory. 2 Comp. Laws 1888, § 2961, 2962. This statute was adopted in this Territory in 1874, and provides that an action may be maintained against any person or corporation whose wrongful act or neglect has caused the death of any person, notwithstanding the death of the injured person, if the injured party could have maintained an action for damages in respect thereof if death had not ensued; and that every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and the amount recovered shall be distributed by the probate court to the heirs of the decedent to the exclusion of creditors, and that the amount of damages so recovered shall not in any case exceed the sum of $ 10,000. By sections 3178 and 3179, Comp. Laws 1888, adopted in 1884, it is provided that such an action may be maintained for the death of a minor by the parent or guardian, and for the death of one not a minor by his heirs or personal representatives, and that in such action, "such damages may be given as under all the circumstances of the case may be just." Under a statute similar to the one last referred to, it has been held in California, in an action by a father for the death of his daughter, that it was proper for the jury to consider, in determining the amount of his recovery, his mental anguish and suffering for the loss of his child. Cleary v. Railroad Co., 76 Cal. 240; 18 P. 269. The court gives no reason for so holding, aside from the wording of the statute, but contents itself by referring to Beeson v. Green Mountain, etc., Co., 57 Cal. 20; Cook v. Railroad Co., 60 Cal. 604, and Nehrbas v. Railroad Co., 62 Cal. 320. But in neither of these cases was the point directly raised. In the case in 62 Cal., which was an action by a father for the negligent killing of five of his minor children, the jury gave a verdict for $ 10,800, and the court, in refusing to set aside the verdict as excessive, said that the jury was not "limited to the actual pecuniary injury sustained by the plaintiff by reason of the loss of the services of his children," but nothing was said anywhere in the case about the mental anguish and suffering of the father being a proper element of damage. The case in 60 Cal. was an action by the wife as administratrix for the death of her husband caused by the negligence of the defendant. The plaintiff and her daughter were permitted to testify against the objections of defendant that the deceased was a kind and attentive husband and father, and that his social and domestic relations were happy. But no proof was offered of the mental anguish of the widow or family, nor were any damages given on that ground. The court held that it was proper to show the domestic relations of the parties, their kindly demeanor to each other, etc.

The foregoing cases decided by the California courts are all based on the case of Beeson v. Green Mountain etc., Co., 57 Cal. 20. That was a case where the wife sued for the death of her husband, caused by the negligence of the defendant. Evidence was offered as to the social and domestic relations of the plaintiff and her deceased husband, and the lower court instructed the jury that they might consider the pecuniary loss, if any, the plaintiff had suffered in the death of her husband by being deprived of his support; "also the relations proved as existing between plaintiff and deceased at the time of his death, and the injury, if any, sustained by her in the loss of his society." The latter part of the instruction was objected to, but the supreme court sustained it. Nothing was claimed, however, for mental anguish of the plaintiff, and the court intimated that it would not be allowable. The court say: "We think that the social and domestic relations of the parties, their kindly demeanor toward each other, the society, were parts of 'all the circumstances of the case,' for the jury to take into consideration in estimating what damages would be just, from a pecuniary point of view, especially as there is nothing in the case to show that the jury were instructed that they might give damages by way of solace." We think, therefore, the case of Cleary v. Railroad Co., supra, is not sustained by the other California cases cited to support it. The only other State in which it has been held that the mental suffering of the survivor may be taken into consideration in assessing damages in such cases is Virginia. Matthews v. Warner, 70 Va. 570, 29 Gratt. 570. The court in that case say: "The certificate of facts shows...