64 P. 603 | Kan. | 1901
The opinion of the court was delivered by
This was an action brought by T. L. Ryan, as administrator of the estate of M. J. McGlade, deceased, in behalf of the latter’s next of kin, against the Atchison, Topeka & Santa Pe Railway Company, to recover damages for negligently causing the death of said McGlade. A verdict and judgment were rendered for plaintiff, to reverse which defendant has prosecuted error to this court. The action was brought upon the statute (Gen. Stat. 1897, ch. 95, §418; Gen. Stat. 1899, §4686), which reads as follows :
"When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an*684 injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.”
The statute is dispositive of property interests and not regulative of modes of practice. There is nothing
This view accords with such decisions as have a bearing on the subject. In Pinkham v. Blair, 57 N. H. 226, 242, a devise to the testator’s “next of kin” was held to include not merely his surviving brothers and sisters, but the children of his deceased brothers and sisters, as well. This because the statute of descents of the state vested such children with the inheritable rights of their deceased parents. A statute authorized a certain class of actions to be brought against the ‘ ‘ next of kin ” of a deceased person. It was held that the term included those to whom, under the statute of distributions, the personal estate of the deceased would pass. (Merchants’ Ins. Co. of New York v. Hinman, 34 Barb. 410.) The court below, therefore,
The jury returned a verdict against the defendant for $5000, and also made the following findings :
“Ques. Did the deceased ever contribute anything to the support of his brother, Arthur McGlade? Ans. No evidence.
"Q,. Did the deceased ever contribute anything to the support of his sister, Mrs. Elizabeth Burns ? A. No evidence.
“Q. Did the deceased ever contribute anything to*687 the support of his nephew, John Langlois? A. No evidence.
“Q,. Where did the deceased live at the time of his death, and how long did he reside at such place ? A. Headquarters at Kansas City, but no evidence of length of time.
“Q,. What are the respective ages of the brother, sister and nephew of the deceased ? A. The first two, no evidence; age of nephew, nine or ten years.
“Q,. What are the financial conditions of said brother and sister ? A. No evidence.”
In the light of the evidence above summarized and the findings of the jury above quoted, it is not possible to sustain the judgment rendered in this case. It is not, however, a case of excessive damages given under the influence of passion and prejudice, and, therefore, to be set aside under the statute, but it is a failure to make proof of substantial damages, and therefore to be set aside, on the general principles of law. An action of the character of this one is purely compensatory. It is brought to recover for pecuniary loss consequent upon death. There being no legal liability resting upon M. J. McGlade to contribute to the support of his kinspeople, they can maintain the action only upon proof that he had contributed to them in some way, or had recognized his family obligation to do so and had manifested a disposition to discharge it. All the authorities are to this effect. (A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kan. 443; A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 id. 543, 6 Pac. 877; Coal Co. v. Limb, 47 id. 469, 28 Pac. 181.) In the last case cited it was said:
“This is an action for compensation only, and no damages can be recovered by the plaintiff below except for the pecuniary loss which the parents sustained by the death of the son. The burden was on the administrator to show that loss occurred. If there was*688 no evidence that his life had been of actual benefit to the parents, or that any benefits might be reasonably expected by the continuance of his life, then no more than nominal damages could be recovered. (Railroad Co. v. Weber, 33 Kan. 543.) There must have been evidence either of actual benefits or those in expectation before the jury can give substantial damages; and an attempt to assess such damages without proof would be to indulge in mere conjecture, which is not permissible. If the son had contributed anything in the past, there would be grounds for the expectation that he would have continued to contribute in the future ; or if the son was a minor, the parents would have a legal right to the services of the son during his minority; but after majority no such legal right exists, and the benefits thereafter would depend upon the capability of the son and his disposition to confer benefits on his parents.”
We do not mean to say that there must be evidence of support currently furnished by a deceased to his next of kin, or presently promised to them by word or act of his. Expectation of descent or devise of property may be indulged by them, and may justify an action for pecuniary loss, although we do not so decide ; but, if so, that expectation, like the expectation of support, must rest upon a reasonable basis. In such case there must be something in the conduct, declarations, disposition or acts of the deceased toward his next of kin to give rise to a belief that they would profit out of his estate, provided that, dying in the future, he should leave one greater than he did leave, and provided, also, that it should not go to others by devise or by his marriage. These last-mentioned matters are so nearly in the nature of vague speculations as hardly to be worth consideration in many cases, even if to be considered in any case at all; but taking them into account for what possibly may be made out of
However, we wish to say in this connection that the plaintiff offered evidence which, if received, would have tended to prove an intention upon the part of the deceased to educate and support the nephew. It consisted of declarations to that effect made by him. It seems to have been rejected by the court upon the theory that it was hearsay. Without determining the question, because it is not before us for determination, the correctness of the ruling made would seem to be questionable. (Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235.) The questions of evidence determined in The State v. Baldwin, 36 Kan. 1, 12 Pac. 318, would seem to be somewhat of the same nature as the one considered by the court below in this case.
A statute of Iowa authorized the introduction in evidence of “historical works and books of science, when made by persons indifferent between the parties, as presumptive evidence of facts of general notoriety or interest therein stated.” The supreme court of that state held the Encyclopedia Britannica to be a work or book of the kinds mentioned, and affirmed the correctness of the reading therefrom of the Carlisle table of life expectancy. (Worden v. Humeston & S. Ry. Co., 76 Iowa, 310, 41 N. W. 26.) The defendant in the present case did not pretend that the tables read to the jury were not standard, or that the encyclopedia read from was not an authentic and reliable work.
For the errors pointed out, the judgment of the court below is reversed and a new trial ordered.