Burbidge v. Utah Light & Traction Co.

196 P. 556, 57 Utah 566, 1921 Utah LEXIS 87

Opinions

GIDEON, J.

The plaintiff, as the administrator of the estate of Peter Peterson, deceased, brings this action to recover damages for the death of his intestate. The deceased was employed as a motorman by the defendant company and at the time of the accident was operating a car over one of its tracks. The accident is alleged to have been the result of the negligence of the defendant company. The alleged acts and omissions constituting the negligence are: (a) Defendant used, or suffered to be used, an unsafe, defective, and insufficient street car; and particularly a car with a defective set of brakes, (b) The roadbed of defendant was too lightly constructed, and defendant carelessly and negligently constructed too short a turn without using due care to make a wider circle in said turn, (c) The company failed to place a “stop” or “slow down” sign to warn the motorman of the dangerous curve. The defendant denied the negligence, and, as an affirmative defense, pleaded contributory negligence and assumption of risk. A jury returned a verdict against the plaintiff, finding all issues in favor of the defendant. The (‘ase is before this court on the judgment .roll and a brief summary of what the evidence offered by the parties tended to prove.

The complaint contains the names’ of five individuals who, it is alleged, are ‘ ‘ the next of kin and heirs of said deceased. ’ ’ The relation of the persons named and designated as “heirs” and “next of kin” does not appear in the complaint. It does appear in the record, however, that the parties named are children of the deceased. Three of the children are over the age of 21 years. Two, namely, James Peterson and Anna Peterson, are respectively of the ages of 15 and 13 years.

The brief summary of the evidence found in the record, and which is certified to by the court, reads as follows:

“Plaintiff offered evidence tending to prove the allegations of bis complaint and that said Peter Peterson bad supported tbe said minor children during their infancy, but no evidence was introduced respecting any particular sums of money given by deceased to said minors for their support during the last 18 months prior to his death; and the defendant haying given evidence tending to support the allegations of the answer and that the said Peter Peterson was living separate and apart from said minor children for about 18 months prior to his death, and tending to prove that during said 18 months there had been no association between said deceased and said minors, and there was no evidence of loss of society or companionship, the court instructed the jury.”

Appellant bas discussed but one assignment of error. It relates to tbe eighth instruction. That instruction is as follows:

“The court further instructs you that in this case you cannot presume that the two minor children suffered pecuniary loss or loss in money because of the death of Peter Peterson, but the burden rests on plaintiff to prove such pecuniary loss, if any has been sustained by them; and plaintiff must show, and, before you can find a verdict in their favor you must find, from the evidence in this case, that decedent recognized that obligation to contribute to the support of said minors and in fact did contribute to their support, and unless the evidence shows that they had prior to his death received, or had reasonable expectation of receiving during a continuance of his life, pecuniary contributions from the deceased, then they cannot recover damages in this action on that account, and in passing upon the question of pecuniary loss, if any, you gentlemen of the jury are not allowed to speculate generally or indulge in assumptions not based on the actual evidence, if any, in the case.”

The exception is to tbe following statement in tbe instruction :

“Plaintiff must show, and, before you can find a verdict in their favor you must find, from the evidence in this case, that the decedent recognized that obligation to contribute to the support of said minors and in fact did contribute to their support, and unless the evidence shows that they had prior to his death received, or had reasonable expectation of receiving during a continuance of his life, pecuniary contributions from the deceased, then they cannot recover damages in this action on that account.”

It is contended by appellant that tbe rule of law announced in tbe portion of tbe foregoing instruction excepted to is error and that it is such error as is prejudicial to the appellant’s rights, It is insisted that tbe statutes of this state imposed a duty upon the deceased to provide for the support and maintenance of his minor children and that the fact, or ab sence of such fact, that the deceased recognized his obligation, is wholly immaterial.

Whatever may be the rule in other states, the law of this state is that it is the duty of the father to support his minor children. It is made a criminal offense to willfully fail to support one’s minor children under the age of 1 16 years. Comp. Laws Utah 1917, § 8112; State v. Bess, 44 Utah, 39, 137 Pac. 829. See, also, Alvey v. Hartwig, 106 Md. 254, 67 Atl. 132, 11 L. R. A. (N. S.) 678, 14 Ann. Cas. 250.

True, the legal duty, standing alone, in our judgment, does not warrant the recovery of anything in excess of nominal damages; but the legal duty, nevertheless, does exist, and the fact that the deceased recognized it or did not recognize such duty could not conclusively determine the plaintiff’s rights in the action. The case cited and relied on by respondent, Fogarty v. Northern Pac. Ry. Co., 74 Wash. 175, 133 Pac. 609, L. R. A. 19160, 800, was an action prosecuted under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665). The lower court in that case instructed the jury that it was the legal duty of the deceased in his lifetime to care for and support his wife and child, although he lived separate and apart from them, and that this duty could not be avoided by any voluntary act on his part, and that the wife and child were entitled to damages for the death of the father and husband caused by the negligence of another independently of whether he actually contributed anything to their support. The Supreme Court of Washington held this to be error and based its conclusion on the interpretation of the Employers’ Liability Act by the Supreme Court of the United States in cases cited in the opinion. The right to maintain an action and recover damages under the federal Employers’ Liability Act as construed by the Supreme Court of the United States is for the benefit of certain relatives enumerated in the statute conditioned upon the dependency of such relatives upon the deceased (Michigan Central R. Co. v. Vreeland, 227 U. S. 68, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176; American Railway Co. of Porto Rico v. Didricksen, 227 U. , 33 Sup Ct. 224, 57 L. Ed. 456. Under our statute the right to maintain an action for the wrongful death of an adult is in the heirs or the personal representative for the benefit of the heirs. It may be conceded, I think, 2 as a fundamental principle, that any recovery under like or similar statutes to ours must be founded upon a pecuniary loss and the loss must be such that in contemplation of law it amounts to the deprivation of some service, attention, or care that'has in it the element of pecuniary value. That principle was stated by this court in an early case. In Pool v. Southern Pac. Co., 7 Utah, 310, 26 Pae. 656, the court said:

“If the testimony did' not show that there were heirs living who were pecuniarily injured by his death, no recovery should be had, as in that case no one has sustained any pecuniary loss or injury by his death.”

"What particular facts or elements may enter into this pecuniary loss differ under different statutes.

The Supreme Court of the United States in the cases cited determined that the loss of companionship between a husband and wife was not capable of pecuniary measurement, and therefore was not a proper subject to submit to the jury as an element of damages. It has been repeatedly held by this court that it was proper to submit to the jury, as an element of damages, the loss of the society and companionship 3 as well as the habits of the deceased in regard to his family and what he might be expected to do in the future. Pool v. Southern Pacific Co., supra; Webb v. D. & R. G. Ry. Co., 7 Utah, 17, 24 Pac. 616; Wells v. D. & R. G. Ry. Co., 7 Utah, 482, 27 Pac. 688; Chilton v. U. P. Ry. Co., 8 Utah, 47, 29 Pac. 963; Evans v. O. S. L. R. R. Co., 37 Utah, 431, 108 Pac. 638, Ann. Cas. 1912C, 259.

It has also been held that the right of inheritance, that is, the probability or improbability of the deceased during his lifetime of acquiring an estate which the heirs 4 would inherit, might be considered in determining the damages, if any, which the heirs had sustained.

In discussing the measure of damages in an action for wrongful death, in Spiking v. Railway & Power Co., 33 Utah, at page 339, 93 Pac. at page 847, the court said :

“Under our statute, both the wife and the children were heirs of the deceased, and as such were entitled to recover, not only for the loss of support, companionship, and the assistance he would naturally and probably be to them but were entitled to all the pecuniary loss that they may have sustained by reason of his death, which could be established with reasonable certainty in view of all the circumstances pertaining to the subject-matter.”

In the nature of things no hard-and-fast rule can be laid down as to the measure of damages. Comp. Laws Utah 1917, § 6505,' prescribes or designates the measure of 5 damages in eases like the one at bar in the following language: “Such damages may be given as under all the circumstances of the ease may be just. ’ ’

The court instructed the jury that the plaintiff was not entitled to recover for the loss of companionship and society of the deceased. No complaint is made of that instruction. We assume that none could be made under the circumstances shown by the testimony.

Conceding that the testimony in this ease did not show that the deceased had contributed to the support of his minor children, the question still remains to be determined, the legal duty being conceded, should the court determine as matter of law that the failure to recognize that duty or the failure to contribute anything to the support of his children as the law requires deprived the appellant of any right to recover. We are of the opinion that it should not. The legal right exists. The law provides a means by which the minors or the state in behalf of the minors could compel a father to support his children. Can it be said as a matter of law that when minors or heirs are deprived of that right there is no 6 redress, and that there is no standard of measurement by which the amount of recovery can be governed or controlled? We are of the opinion that the legal obligation of a parent to support his children and their prospective inheritance are proper questions to be submitted to and considered by the jury under appropriate instructions of the court in arriving at the measure of damages in this class of cases.

In a well-considered case from Michigan, Ingersoll v. Detroit & M. Ry. Co., 163 Mich. 268, 128 N. W. 227, 32 L. R. A. (N. S.) 362, in which many authorities are cited and discussed, it was held that an administrator was entitled to recover for the benefit of a surviving wife and minor child the probable amount of contributions, whether voluntary or forced, that such widow might have received during her expectancy where death of the husband by wrongful act had intervened. In that case the deceased never had contributed or recognized his obligation to support either his wife or minor child before his death. It was there claimed that there was no basis for a recovery, and the trial court so held. On appeal the Supreme Court, commenting on the case, said:

“It Is urged by defendant that there was no basis for assessing damages. Had decedent been proceeded against to compel him to support his wife and child, the same difficulty would have been encountered; and yet we think the court would have had no difficulty, after learning all of the facts, to fix a reasonable basis from which to determine the amount. Had this man been killed by a negligent act, an hour after his marriage, and before he had ever contributed a cent to the support of his wife, would it be contended that she had not suffered pecuniary loss thereby? It would seem not. What would be the basis of assessing damages in such a case? We think that they would be determined by showing the circumstances, and by evidence of the probability, under proper rules, as in suits brought by parents to recover damages in case of the negligent death of a young child, who had never earned a dollar. * * * We are of opinion * * * that the circuit judge should have permitted the case to go to the jury * * * to determine as to the liability of the defendant; and, if any was found, to assess damages, if any, for the contributions, voluntary or forced, that would probably have been made by deceased in favor of the widow-'during her probable life, if not exceeding the probable life of decedent, and for the child during its minority.”

See, also, Tiffany’s Death by Wrongful Act (2d Ed.) § 159.

Cases can readily be imagined where the facts and circumstances- are such that there is no human probability that any assistance would ever have been given to the minor children or to the other relatives and heirs of the deceased, and under such state of facts, manifestly, it would be the duty of the court to see that no recovery was had, because no one had been injured. In this case the summary of evidence certified to this court is to the effect that the plaintiff introduced proof tending to prove the allegations of the complaint. The allegations of the complaint are that the plaintiff, or, rather, the heirs of the deceased, were damaged in the sum of $12,000. The evidence not being before this court, in detail, we must assume that the statements of the court below that the testimony tended to support the allegations of the complaint is true, and that there is evidence in the record tending to show damages in some amount. The vice of the instruction, as we have attempted to point out, is that it advises the jury that as a prerequisite to the right of recovery the deceased must have recognized his obligation to support his minor children and that he actually contributed to their support.

It is, further contended that if it be conceded that the eighth instruction is erroneous, nevértheless it was not prejudicial by reason of the fact that in the twenty-fourth instruction the jury were correctly advised relative to the measure of damages. Should it be held that the twenty-fourth instruction correctly states the law as to the measure of damages, that does not, in our judgment, cure the harm of the eighth instruction. Unless the jury found, as directed 7 by the eighth instruction, that the deceased recognized his obligation to the minors and in fact contributed to their support prior to his death, necessarily the jury would have no occasion to consider the rule as to the measure of damages given in the twenty-fourth instruction. In other words, the instructions left the jury with the necessity of first finding as a fact that the deceased recognized his obligation.

Some stress is laid upon the fact that the jury in its verdict found “all issues” in favor of defendant and against the plaintiff. Reliance is had upon the word “all.” It is in-siste/I that the jury must have found that the defendant was not guilty of the negligence charged in the complaint; also, that the jury must have been convinced, and so found, that the plaintiff was chargeable with contributory negligence. Cases are cited in which it is held that a general verdict ren ders aii erroneous instruction upon a question which, the jury must have found adversely to the party complaining nonprejudicial. In other words, that the verdict must have been, in the very nature of the questions considered, founded upon a finding which relieved the erroneous instruction from any prejudicial results. In this case no such situation exists. The jury might have been convinced by the testimony that the defendant was negligent and that such negligence was the proximate cause of the injury, but may have concluded, under the instruction, that the plaintiff could not recover, forsooth, because the deceased did not recognize his legal obligation to'care for his minor children. As we have seen, the fact of his recognition, or nonreeognition, cannot be conclusive against the right of the plaintiff to recover. We do not think that such conclusive effect as is claimed by the respondent should be given to the word “all” found in the verdict.

The authorities cited to support the contention that a general verdict renders an erroneous instruction on the question of the measure of damages nonprejudieial in no way run counter to the principle considered and announced in this opinion. A concise but comprehensive statement of the rule of law announced in those cases, as we understand them, is given by the Supreme Court of Iowa, in Thorp v. Western Union Tel. Co., 84 Iowa, at page 193, 50 N. W. at page 676, as follows:

"An instruction as to the damages to be recovered is complained of by counsel. As there was no verdict for the plaintiff, the jury, we presume, never went so far as to inquire as to damages. The instruction could have had no possible effect upon the findings of the jury as to the plaintiff’s right to recovery. It need not, therefore, be considered.”

Again, the same principle is stated by the Supreme Court of Alabama in Pulliam v. Schimpf, 109 Ala. at page 185, 19 South, at page 430, as follows:

“Where the verdict thus establishes that the plaintiff is not entitled to recover at all, errors committed by the court, if any, relating to the measure of damages, are not available to reverse the judgment.”

No one has any quarrel with the doctrine announced by those courts. It does not, however, meet, nor is it applicable to, the objection urged against the instruction complained of by appellant in this case. The jury were instructed by the district court that before the plaintiff was entitled to recover at all the jury must find that the deceased had recognized his obligation to support his minor children and 8 had contributed to their support. As pointed out herein, the plaintiff’s right to recover was not barred by the nonexistence of either of those facts. The instruction did not relate to the measure of damages, but primarily to the right of the plaintiff to recover at all. Necessarily, if the verdict of the jury is to be considered as finding that there was no negligence on the part of the defendant, or that there was contributory negligence which resulted in the injury, then the contention would be correct. In this case, however, the jury were required, as we think erroneously, to determine first that the deceased had recognized his obligation, and second, that he had actually contributed to the support of his minor children. Manifestly, neither of these questions is in any way related to or connected with the measure of damages.

For the reasons stated, the judgment must be reversed and the cause remanded for a new trial. Such is the order. Respondent to pay costs.

CORFMAN, C. J., and WEBER, J., concur.