Barnum v. Chicago, Milwaukee & St. Paul Railway Co.

30 Minn. 461 | Minn. | 1883

Gileillan, C. J.

Action by an administratrix for negligently causing the death of her intestate. The complaint alleges that the deceased left no widow, legal issue, nor father, but left next of kin his mother and brother and sisters, giving the name of each, and alleges that this action is brought for the exclusive benefit of the said next of kin of the said deceased, and this plaintiff and the said next of kin of the said deceased, as aforesaid, have suffered damage by reason of the killing of said deceased in the sum of $5,000. A demurrer to the complaint was overruled. The particular objection to the complaint is that there can be no cause of action where there is no damage; that damages to the next of kin are not in such cases implied by law, but must be shown to have actually accrued; that they are, therefore, in their nature special, and must be specially pleaded. In other words, facts showing that damages in fact accrued, and how, must be set forth.

No ease has been before this court requiring any decision of the question, nor of any necessarily involving it. It has been before the courts of other states upon statutes closely resembling ours. In Safford v. Drew, 3 Duer, 627, it was held that the complaint must show that there are persons who have sustained a pecuniary loss, which is undoubtedly correct. In Regan v. Chicago, M. & St. P. Ry. Co., 51 Wis. 599, it was held that the damages must be specially pleaded, and that a complaint with only a general allegation of damage is not good. In Johnston v. Cleveland & T. R. Co., 7 Ohio St. 337, and in Chicago & Alton R. Co. v. Shannon, 43 Ill. 338, it was held that upon such a complaint nominal damages, .at least, can be recovered; and it appears to have been assumed by the court in Oldfield v. N. Y. & H. R. Co., 14 N. Y. 310, and Quin v. Moore, 15 N. Y. 432. The latter'decision we think most consonant with the terms and intent of ourstatute. It reads (Gen. St. 1878, c. 77, § 2:) “When death is caused by the’ wrongful act or omission of any party, the personal representatives of the deceased may maintain an action, if he might have maintained an action, had he lived, for an injury caused by the name act or omission. * * * The amount recovered is to be for the exclusive benefit of the widow and next of kin, to be distributed to them in the same proportions as the personal property of the deceased person.” The statute assumes that the widow and next of kin have a reasonable expectation of pecuniary benefit, as of right or otherwise, and to a greater or less extent, from the continuance of life, which they lose by the act or omission causing the death, and this expectation is taken as the basis of the damages. As said by this court in Schwarz v. Judd, 28 Minn. 371, “the theory of the statute is that they have a pecuniary interest in the life of the deceased, and its object is to compensate them for their loss caused by his death.” Such being the theory of the statute, it necessarily implies some damage from the death. And where, as in this ease, the complaint states the names of the next of kin, and how they were related, with an allegation of damage to them, it is a sufficient pleading upon which to recover all the damages that can be recovered in such an action. To require the plaintiff to go further, and set forth in detail the various circumstances proper for a jury to consider in arriving at the amount of damage, would be requiring him to plead evidence.

Order affirmed;