Beaman v. Martha Washington Mining Co.

63 P. 631, 23 Utah 139, 1901 Utah LEXIS 6

• Court: Utah Supreme Court
• Decided: January 7, 1901
• Status: Published

Opinion

HaRT, Dist. Judge,

(after stating the facts).

The defendant complains of the following instruction, No. 26: “If you find for the plaintiff, you will then award such damages as in your judgment from the evidence the plaintiff bas sustained. You can not award any damages for tbe mental suffering or injured feelings of any of tbe relatives of tbe deceased. In determining tbe amount of damages you may take into consideration tbe age, mental and physical health at the time of bis death, bis probable length of life, bis ability and disposition to labor, his habits of living, tbe probable earnings of deceased before coming of age, from which should be deducted tbe reasonable cost of bis care and maintenance during bis minority; also tbe loss of comfort, society and companionship of said deceased, if any, that tbe plaintiff bas sustained by bis death, and tbe amount, if any, expended for funeral expenses. And you should consider all tbe facts and circumstances, so far as shown by the evidence, which show any pecuniary loss to tbe plaintiff. And from all tbe above facts award such compensatory damages, if any, as tbe evidence shows bas been sustained.”

Appellant’s criticism of this instruction is for what it fails to state rather than for any error expressed therein. Among tbe wholesale exceptions to tbe instruction given, appellant excepts to tbe giving of instruction No. 26.

Whatever may have been tbe actual intent of the en-actors of sec. 3151 of tbe Revised Statutes of Utah, 1898, providing that “no reason need be given for such exceptions,” this court bas so often condemned a general exception and held that tbe specific objectionable matter must be pointed out that tbe writer of this opinion does not deem it necessary to discuss tbe matter here. It may be noted, however, that any other rule would be a hardship upon litigants, a burden to tbe courts and against public interest. Where the trial court must instruct the jury in writing before tbe arguments of counsel to tbe jury and often bas only tbe time while tbe testimony is being taken in which to consider and prepare the instructions, it would be unreasonable to place the trial court in the position of an insurer, in a sense, of tbe correctness of each instruction, not only as to the law given, but also as to what is omitted to be given, and this without attention ever being called to the point of the objection- The instructions being in writing, counsel have ample opportunity of knowing exactly what is charged and taking exceptions to objectionable matter. ■ There are a number of distinct propositions contained in said instruction, many of which were without doubt correct. An exception in gross by mere reference to the number of the paragraph did not direct attention to the matter objected to and was insufficient. Marks v. Thompkins, 7 Utah 425, 27 Pac. 6; Nelson v. Brixen, 7 Utah 454, 27 Pac. 578; People v. Hart, 10 Utah 204, 37 Pac. 330; Ruffatti v. Min. Co., 10 Utah 386, 37 Pac. 591; People v. Berlin, 10 Utah 41, 36 Pac. 199; Scoville v. Salt Lake City, 11 Utah 60, 39 Pac. 481; Lowe v. Salt Lake City, 13 Utah 91, 44 Pac. 1050; Wilson v. Mining Co., 16 Utah 392, 52 Pac. 626; Scott v. Milling Co., 18 Utah 486, 56 Pac. 305; Brigham City v. Crawford, 20 Utah 130, 57 Pac. 842; Wall v. Smelting Co., 20 Utah 474, 59 Pac. 399; Pool v. Railway Co., 20 Utah 201, 58 Pac. 326; Nebeker v. Harvey, 21 Utah 363, 60 Pac. 1029; Haun v. Railway Co., 22 Utah 346, 62 Pac. 908; 8 Ency. Pl. and Prac., 259-264, and cases there cited; 2 Ency. Pl. and Prac., 948-951, and cases cited; Baltimore & P. R. Co. v. Mackey, 157 U. S. 72, 39 L. Ed., 624, and cases cited.

Appellant complains of that part of the instruction which permits a recovery for “the loss of comfort, society and companionship ,of said deceased, if any, that plaintiff has sustained by his death.”

Appellant is estopped to so object in view of its first request to instruct as follows:

“In such action such damages may be given as, under all the circumstances of the case may be just, not exceeding tbe probable pecuniary value of tbe loss of tbe comfort, society and protection to tbe father and tbe probable earnings of such child, after deducting tbe reasonable cost of bis care and maintenance, to -which may be added tbe cost of necessary funeral expenses. In such action tbe father is not entitled'to recover for tbe benefit of tbe mother or heirs of tbe deceased child, or for tbe benefit of any other person than himself.”

But Hie court did not instruct that- any recovery for loss of comfort, society, etc. should be limited to tbe period of the minority of tbe deceased, as embodied in defendant’s fourth request, as follows:

“If tbe jury find for plaintiff, in fixing the amount of damages you should not take into account or allow for any benefit, advantage, aid or comfort which might have accrued to the deceased’s parents or either of them, but for his death after said deceased child should attain the age of twenty-one years.” There was no- error in the refusal to so instruct. A different rule is established elsewhere under different statutes. This suit is brought under and is determined by sees. 2911 and 2912 R. S. Utah, 1898, as follows:

“2911. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the death or injury of a minor child; and a guardian, for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person who is responsible for his conduct, also against such other person.”

“2912. When the death of a person, not a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may be given as under all tire circumstances of the case may be just.”

The recovery of the parent is not necessarily limited to the period of the child’s minority but the parent may recover for benefits reasonably to be expected to be received from the child after majority. Boyden v. Fitchburg, R. C. 70 Vt. 125; Holt v. Spokane, etc. R. Co. (Ida.), 35 Pac. 39 ; Ill. Cen. R. Co. v. Reardon, 157 Ill. 372; Flaherty v. N. Y. & N. H. R. Co., 19 R. I. 604; A. T. & S. F. R. Co. v. Cross (Kan.), 49 Pac. 599; Thompson v. Johnson Bros., 86 Wis. 576; St. Louis I. M. & S. R. Co. v. Davis, 55 Ark. 462; Pierce v. Connors, 20 Col. 178; G. C. & S. F. Ry. Co. v. Compton, 75 Tex. 667; Birkett v. Knickerbocker, 110 N. Y. 504; Texas & P. R. Co. v. Wilder, 92 Fed. 953; Hyde v. U. P. R. R. Co., 7 Utah 339; Wells v. Railway Co., 7 Utah 482; Pool v. Railway Co., 7 Utah 303; Chilton v. Railway Co., 8 Utah 48.

Appellant requested that recovery for loss of comfort, society and protection be limited to the “probable pecuniary value thereof.” The court evidently attempted to so state the law in the twenty-sixth instruction, and while the language is not as free from possible ambiguity as we would like to see it, yet it perhaps more clearly restricts a recovery to a pecuniary standard than is done in the instruction approved by this court in the Hyde casé and the Wells case above cited.

Other requests by appellant that were refused and excepted to are to the effect- that damages could not be awarded on account of any loss to the deceased child or suffering on his part. This is doubtless a correct statement of the law; but was appellant in any wise prejudiced by its not being given ? There appears to be no testimony of any suffering by deceased. The arguments of counsel in, or the facts of, some cases, might-make it necessary for tbe court- to give such a charge, but in the absence of some such showing, there should not be a reversal for failure to so instruct. It was a mere negative, a statement of what could not be considered as a proper element of damages. It was enough to state affirmatively the elements of damages in the absence of some necessity for telling the jury what could not be considered by them.

Error is assigned to the taking of certain testimony. Mr. Hurd, one of the counsel for defendant, was called to the stand by counsel for plaintiff, and the following proceedings taken:

“Q. Mr. Hurd, the firm of Rawlins, Thurman, Hurd ' and Wedgwood appear as attorneys of record for the defendant here do they?

A. Yes, sir; the record so shows it is.

Q. Ho you know whether they represent an insurance company in this case ?

Mr. Wedgwood. I object to it as wholly immaterial who they represent.

(Some argument by counsel on each side.)

Mr. Wedgwood. We ask, if there is going to be any argument that the jury retire during the argument.

The Court: I don’t care to hear any argument. The objection is sustained.

Judge Powers. Note an exception.

Mr. Wedgwood. I will take an exception to the argument on the objection to the question by Judge Powers. We object to the question and the argument of counsel and we desire to take an exception to make it a matter of record. We object to the question being put in at all.

The Court: Well it can appear on the record that the exception was taken, but it will also appear that the objection was not taken in time to rule on it — to exclude it — it was not taken in time for the court to make a ruling on it.”

We do not think there was such an abuse of the privileges of counsel that a reversal should be ordered on such a record. The wilful asking of an incompetent question may be so prejudicial that even an instruction by the court to disregard the same may not cure the evil. Here there was no objection to the argument in the presence of the jury until after a brief argument was had. There was no effort by defendant to cure the vice of the question, if any, by a request to the court to have the jury disregard the same. Had counsel thought a jury would be less likely to return a verdict in favor of a mining corporation than an insurance company, he should have at least sought to have the court cure the evil by an oral instruction at the time.

Objection was made to the question: “What would be the effect on the skip on that track, as you have described it, if it was run rapidly?” asked of the witness Lyman 0. Johnson, who had been a miner for fifteen years. His answer was: “If the skip jumped the track, it would be apt to turn over if it catches anything.” Substantially the same question was asked George A. McKenzie, a witness who had been engaged in mining for thirty years. His answer, given under objection and exception, was: “In my judgment, the skip would if run very rapidly, might tip without leaving the track.” This was a question for expert testimony, and there was no question raised as to the qualifications of the witnesses. It was not a matter supposed to be within the common experience of the jury, and was not the direct- question the jury were to determine. The ultimate fact for the jury to determine in this connection was whether there was negligence.

Another class of objections is illustrated by the following:

“Q. About how fast was the skip ordinarily hauled, up when men were in it ?”

Objected to by defendant as immaterial. Objection overruled and exception taken.

“A. Sometimes it was run very rapidly and sometimes slower.”

There are some other like questions and objections and rulings, but there was no error therein. Plaintiff had the right to inquire how the skip was ordinarily operated and (from experts) what the probable effect would be.

The judgment is affirmed at defendant’s costs.

Baslcin, J.j and Cherry, Disb. Judge, concur.