*1 Bond United Railroads. upon their contract as parties it, rest have made and not by judicial place construction covenant the lease which neglected to parties have insert there themselves. have the uniform and certain, better and any to such may provided for in contingency the lease. are and order reversed.” judgment
“The January F. No. 5429. In Bank. [S. 1911.] Appellant, BOND, v. UNITED ANNIE RAILROADS OF FRANCISCO, Respondent. SAN Special por Denying and Death-—General "Verdicts—Order Action Judgment—Appealable Order.—In an action to Vacate Motion special general given, and verdicts for death where were a motion judgment to vacate the and for a upon verdict, to he in harmony special claimed with general verdicts, an order is addressed to authorized section 663 of the (lode Whatever Civil upon Procedure. said review granted, yet if motion appeal, such were where it was denied, the clearly denying appealable, special the same is as a order order judgment, section final under 963 of the Code Civil Pro- cedure. upon Appeal prom Rulings upon Id,—Record Order Other op Exceptions—Suppioiency.—Where the" record Motions—Bill exceptions appeal upon appeal showing contains a bill order, therefor, general special the motion and the verdicts; rulings upon motions, including set forth other and also the notices documentary motion, germane and all evidence otherwise to motions, sufficiently motions shows the various were sub- upon therein, for decision evidence detailed mitted the bill. evidence not included in other op por Injuries Causing Statutory—
Id.—Rights Action Death op Statutory Damages.—Rights of action Measure Exclusive law, injuries causing do not death exist at common but are statutory. statutory and exclusive measure of purely is that embodied section of the Code of in such actions Civil Procedure, under all the which is “such circumstances just.” may be op por Son—Wage Earner—Earning Mother Death Id.—Action Minority—Common Expectancy op Capacity not Limited Lipe.—In negligent injuries causing a mother action her, wage supporting earner son, her who was a her re- death Jan. minority, covery during his earning capacity limited present
but she of the reasonable benefit is entitled value majority she which would have after his received period of expectancy their common life. Limiting Damages Pecuniary of Loss. Id.—Rule Loss—Extension *2 child, by parent —In an or for the death action for to may or allowed are have been be damages the those which regard any suffering by parent, the to of the child. suffered without in all for death limiting damages In view of the rule the actions of Procedure to the under sections 336 and 337 of the Code Civil pecuniary by person persons or whose benefit loss suffered the for pecuniary be right given, the the loss suffered should of action every kind, the extended include all loss of which to particular the reasonable cer- circumstances of case establish with tainty future, beneficiary of the statute will be suffered the because of the death. Jury.—
Id.—Application Damages—Question for of of Statute Rule application prescribing of “such In the the statute rule just,” of it is to be as under all the circumstances the case be facts, upon jury say, left to the to a consideration of the what just compensation amount is a for the financial loss which will probably directly proximately or the death. be caused Limiting Recovery to of Mother Son’s Id.—Erroneous Instruction Minority.—In strong and view of that was a the fact the son robust to young man, earning good wages helped was with he who which that, support mother, instructing the the court erred recovery minority. mother limited son’s It should the probability have been the left to to determine reasonable majority, the same and to condition would continue present he include value of the benefits reasonably expected expectancy upon during bestow her her to of life. Id.;—Rules power has to to Excessive Verdicts.—The court below excessive; judgment or deemed control limit verdicts which are in its damages exists power appellate but the of court over excessive such as to appears law, when of or is the excess matter part suggest prejudice, corruption or passion, at first blush jury. Earning Special Power— Id.—Insufficient for Verdict Probable repre- a sum special verdict for Indicated.—A Present Value life power during the of senting probable earning of the son recovery, no there is mother, where cannot afford the basis for determining the any calculation, of nor means of estimate or basis power. present earning of such value Services—Pleading— Protection, Id.—Loss Society, of Comfort, Damages.—It Evidence—Recovery neces- was not General under society, allege of specifically the loss sary complaint should given of the services; could be evidence comfort, protection, Bond facts relating and allowance could made thereon thereto he under the general allegation damages. Id.—Bight upon op Judgment General Verdict..—In absence trial, granted motion for a new court should have the motion plaintiff general verdict, judgment where it did grant a new trial assume its own motion excess general presumed must allowance made verdict. under general represented the instructions verdict society, comfort, loss of from the mother protection expectancy of her her son life. Id.—Beversal—Bight op judgment on Verdict.—Where Interest judgment reversed with render for the directions to the court general verdict, prejudice the amount of the without trial, motion or of motion for a new the lower court finally should entered interest judgment include in the entry accrued return and the between the date verdict judgment. Superior APPEAL Court of the County denying City from an order of San Francisco and judgment and to enter a motion vacate set aside the *3 Sturtevant, general judgment upon verdict. A. the Geo. Judge. opinion
The the court. facts are in the stated Roche, Appellant. for Sullivan, & and Theo. J. Sullivan H. Moore, Stanley Moore, Cannon, M. W. A. A. Wm. Orrick, Respondent. for by plaintiff, parent, as a
SHAW, J.This is an action Fritz, son, to recover the death of her Gustave for negligence of defendant. alleged to have been caused jury The returned father before the occurred. His died forty- plaintiff for the sum general in favor of the verdict returned were made and Answers also five hundred dollars. The de- particular questions of fact. jury to certain answers, court, upon certain of these fendant moved for four hundred judgment plaintiff the sum of for the render court, moved plaintiff no The five and more. dollars for judgment plaintiff answers, upon all to render plaintiff The motion sixty-nine hundred sum dollars. Judgment was granted. and that of the defendant was denied -Tan. Bond v. United Railroads. accordingly four
entered hundred five dollars favor plaintiff plaintiff. Thereafter moved the court to vacate judgment entered, judgment and to render so her favor or, failing sixty-nine dollars, that, hundred then for the given by general forty-five sum of hundred dollars verdict. upon aforesaid and The motion based on answers subject of the court to the instructions damages. plaintiff This motion was denied court. The appeals rendered, from the judgment, from the as and also judgment denying order after the last motion. mentioned proper to discussing appeals, merits of the Before respondent. dispose preliminary objections of some judgment, denying motion vacate the order made after consistent, judgment and render a put to questions claimed, with the answers of the it, clearly By 963 of the Code appealable an order. section any special may from Procedure, appeal of Civil an be taken one of that judgment. order after final This order is made 663 of the Code kind. It is an order section authorized Procedure Civil Procedure. Section 663a of the Code Civil “granting be reviewed declares that an order such motion motions appeal in the orders made on same manner as for a new intended either to authorize trial.” This was judgment after- appeal order on from the review such an appeal pursuance it, a direct ward made in or to authorize it should not be construed from the order itself. In either case given by appeal so affect section as to denying motion, from an order made order judgment. Respondent’s position in that behalf untenable. show intended to exceptions, The record contains a bill of ruling upon the several upon which matters the court acted Respondent contends that appeals. motions involved these *4 con- set forth therein this bill not show that the evidence does for its consideration all evidence before court stituted As to determining motions, or either of them. that, upon the recites judgment, before the bill motions made gen- instructions, full, forth hearing thereof, certain set by jury, verdict, special eral determined issues in evi- introduced pleadings were motion and the notices of “said motions court, and that dence and considered and court for consideration thereupon were submitted CLIX Cal.—18 United Railroads.
decision.” The properly documents above referred to all were bill, exhibited in except the-pleadings, incor- which were porated by 'This, judgment-roll. it, reference to the we take is a sufficient declaration the motions were submitted upon detailed, decision upon evidence above and not other evidence not effect, though in the bill. It shows in included not expressly, that it contains all the evidence taken hearing. concerning the motion The recital made after substantially respects in all similar to those above respondent mentioned. The claims of the points these are not well We will now consider the founded. merits appeals.
The questions put returned at the to twelve answers request questions requested the defendant and two plaintiff. important questions The here are the eleventh questions requested by and twelfth and two defendant requested by plaintiff. They are as follows:— probable earnings What would have been the Gus- “11. tave ma- Fritz from the death of his time of his to the time jority?
“Answer. $765.
“12. probable expenses What of Gus- would have been the tave of his Fritz from time up the time of his death majority?
“Answer. $360. expecta- plaintiff,
“1. Bond, Did Annie have a reasonable his tion attained receiving Fritz, after he from Gustave majority during life, contributions expectation her her necessities wants?
“Answer. Yes. ‘yes,’ what your interrogatory
“2. If answer to last ex- reasonable plaintiff, Bond, amount have a Annie at- he had pectation receiving Fritz, after from Gustav of life? majority expectation tained his her $2,400.” “Answer. con- substance, we jury, court had instructed damages, that the charge subject
strue on the could recover actual loss caused comfort, before society, protection of her son earnings she could his account of majority, but that on lived, from if he had earnings, probable recover net *5 Jan. Bond v. United Railroads. of date his death majority. Apparently to the time of his
the court opinion was of a upon different when ruled it motions. Notwithstanding general forty-five verdict for hundred dollars, motion, it sustained the defendant’s allowed nothing deprivation comfort, society, protection either or earnings majority, after “probable earnings” assumed that during minority society, comfort, included the benefits of and protection, gave judgment and four hundred and five dollars, prob- which was the between the total difference able earnings during minority the remainder of his and his probable expenses period. for that that, contends inasmuch as the court instructed could allow as loss deprivation
from society, comfort, after, protection as well as during, minority his minority, limited to his them as to earnings, gen- presumed to be the excess eral verdict above the net four hundred and five dollars earnings comfort, pro- was allowed for society, loss of tection and that the have been for at least should forty-five sum given by general hundred dollars stand, verdict. She also contends verdict must even that that if damages society, comfort, protection loss period limited to the minority, because, so, if presumed to have over allowed on account the excess wit, four five dollars, $4,095, and, except hundred and motion ground the defendant for a of ex- new trial on the damages, cessive or lack is conclusive evidence, the verdict subject, interposed. and no also such motion was She that, character, makes the broader claim in an action of this parent recover, has a occasioned child, death of the such losses period accrue for minority, of its but also those which probably including pecu- majority, after suffered comfort, niary resulting deprivation society, losses from of its protection from of its services and also of such earnings, majority, a rea- parent as the would have expectation receiving if child, sonable it had lived, during broad parent’s expectancy of life. It is this question the main respective to which the counsel have devoted part arguments. of their several causing law,
At common no for an action lie yrould Bond Rights by, or for of, parents, death. action the benefit person damage children, killed, or heirs of the for the caused death, solely exist because of to them statutes and statutory provisions which create or are limited confer *6 present provisions is the them. The action founded of of Procedure, and 377 Code Civil sections 376 of the which are as follows:— father, A 376. in case his or or of
“Sec. death desertion may family, mother, an action the maintain for the of his child, guardian injury or death of a minor for the ward, injury when or injury or death of such death is his neglect by wrongful another. act or of Such action caused causing against person injury, or may be maintained employed by person person if be another who death, or such conduct, against person.” also such other responsible being person a minor 377. When the death “Sec. another, wrongful neglect act or heirs by the is caused may action representatives maintain an for dam- personal or causing if person death, person or such ages against by person responsible for his employed another who is be conduct, person. every also other In against such action then damages section, may such preceding and the be under this case, may all circumstances given just.” under be wholly being statutory, rights statutory action damages. All the is the measure can do cases, construing the rule apply particular in is to provisions, liberally, code as the other same manner “with a (Code objects promote and to justice.” its view to effect Civ. damages 4.). in the The rule stated Proc., sec. last clause made rule to expressly applied be in 377 of section An either section. examination under of the action subject of the a consideration satisfies us decisions minority period beyond fix the as a limit does the statute estimating probable ingo jury cannot which depend on own facts and Every case must circum- loss. actions, general in are made such decisions rules As stances. guidance for the be formed trial court gradually will determining just what and what circum- damages estimating particular may be considered stances cases, they probably will never reach point classes to be subject be said invariable and not rules can such where 277 v. Bond Jan. peculiar extraordinary reason of or to modification circum are, however, rules Some well-settled such stances. nature all they apply to cases class must to which parent, either belong. actions the death or the damages child, those, allowed injury of a are been, be, have only, par which or suffered those given pain can action for No or ent. child, any pecuniary anguish injury on the inflicted (Durkee Co., v. C. personal to such child. P. R. 56 R. Cal. actions, 59].) Rep. In all under 388, section, Am. either [38 limited to loss are suffered for whose benefit the person persons given action is Co., (Morgan of the victim. the death or v. S. P. 71, 516, Rep. L. R. 143,17 Am. St. A. 603]; Cal. 30 Pac. [29 Marysville Co., 710, etc. 376], Cal. Pac. Sneed [87 cited; Co., numerous cases there Johnson v. S. P. 520]; Hale Bernardino Pac. v. San etc. 156 Cal. *7 83].) 716, Pac. [106 absolutely would seem to follow from limiting this every case pecuniary to the
the loss occasioned death, upon justice a consideration of that the which the invokes, pecuniary itself statute this loss should be ex- to, include, pecuniary and should all every tended loss of kind particular the circumstances which case establish with certainty will be suffered the beneficiary reasonable of the future, of the death because statute the victim. Noth- just a compensation be for ing less would injury, anything in anything more, or the realm of improbability, fancy, beyond conjecture or mere would be purview of the unjust to the In many defendant. statute cases where the majority, certainty of pecuniary minor is near loss from parent, accruing death, minority, to the after his would be certainty of great such loss as minority, as and the many years of benefits expectation thereafter would he as in the case death of established well adult. In cases, mere infant, where child is a expectation other years to accrue in the following benefits pecuniary its arrival be so it majority would remote that could justly at be made large addition damages. inSo basis.for case benefits be adults such would exceedingly some improbable. prescribes but one rule for the statute all cases: But “Such 278 Cal. United [159 damages may given under all the be circumstances of the may just.” language The effect of case, manifest this applies it cases to which the rule is to be that in all left to the facts, consideration of the say, what amount just compensation for financial loss which is a the evidence directly proximately probably caused shows will death of the victim. arising 377, referring under section cases to adults who pecuniary loss those are heirs
and where of the vic estimated, considered and this is tim are to be the settled rule. Co., 710, Marysville 149 Cal. 376], In Sneed v. etc. Pac. [87 twenty-two man, years age, an adult unmarried victim was being apparently and mother heirs. He his father working living them and out himself. The with was may arising loss be either a loss said: “This something to which such heirs have deprivation person lived, arising loss legally if the or a been entitled which from all the circumstances from a benefits reasonably expected case, it could be particular from the deceased had his life have received heirs would although obligation resting himon taken, been bestow obligation only.” have been a moral on them such benefits 277, Co., 822, 1063], 110 Oakland etc. Cal. Pac. v. [42 Redfield was by a prosecuted husband and minor children case The wife and mother. the death instructed probable loss of might benefit, allow “for if any, probably which child would value receive majority.” arrival at This was mother from its held (See, also, Co., Hillebrand v. Standard Box 139 to be correct. Co., 163]; Johnson v. S. P. 298, Pac. Cal. 236, Cal. [73 [97 Co., M. 37; G. M. Beeson v. Green Cal. 520]; Simoneau Pac. Co., App. 595, ; Dec. Pac. Ruppee E. R. v. Pac. [115 320] Railroads, App. 666, 1073]; 1 Cal. Pac. Valen [82 97].) Pac. R. R. 158 Cal. v. Sierra first te *8 giving right England in of action statutory for in enactment Campbell’s known as Lord causing Act, passed death juries damages such as the “should It authorized think 1846. in resulting injury from such to death to proportioned whom for whose benefit respectively, parties, This is nowise in brought.” different substance action shall In applying section 377. in our that stated rule act from 279 Jan. 1911.] United Railroads. uniformly laid down and English courts have adhered be calculated “should in refer the doctrine that (Franklin life.” expectation a reasonable v. ence 212.) In Ry. Co., 3 & N. that case the suit was in E. Hurl. S. son, young death of his man earn a father behalf of disposed to assist ing good wages and well his father. The say necessary that it was that actual do not court said: “We derived, expectation a reasonable have been benefit should expectation might exist, well reasonable enough, and such being need, in the son had though from the father never Pym Ry., In v. Great Northern 4 anything for him.” done Queen’s J., Smith, Bench, per Erie, 408, the court of Best & right to says “The is based on the actions: of these advantage con expectation of reasonable (See, also, life of the deceased. Dalton v. S. E. tinuance (N. Mathieson, S.) 305; Weems v. Ry. 4 Bench 4 Com. Hetherington Ry. Co., App. 223; Cas. N. E. 9. L. Macqueen 160.)’ general The Q. B., United States Div R. is the We do think it statutes same. neces under similar cases to this The sary numerous effect. cases re to cite the children to the death of minor be found lating especially Damages, ed., in 4 on 3d sec digested and Sutherland cited 1275, inclusive, Tiffany on Death Wrong 1272 to tions 168, (See, also, 2 Sedgwick inclusive. Act, sections ful ed., 574, 575, 576; Damages, secs. Shearman & R. 8th on on Thompson 772; Negligence, 769, sec. Negligence, secs. 7089.) nearly states, all of the England, statute gives between minors adults no distinction
makes any person, age, death of whatever for the action defendant of, argues use the heirs. The to, or for statute, our in respect a distinction under must be there adults, minors and because the statute damages, as between parties plaintiff. in respect to the makes a distinction itself admitted, presents practical it must statute, original In the peculiar features. Practice some application or, father, “a case of his death or Act, declared sec. mother, may maintain family, the an action of his desertion child; guardian death for the (G. Comp. Laws, 1850-53, & S. ward.” of his death injury legislature supposed this probable 520.) p. *9 280 Cal. Bond v. United Railroads. right gave a causing section of action an the death supreme not, a it child. The court held did and that it merely designated party injury, authorized sue such legislation give subsequent right if should a of action there- (Kramer 436.) Market 25 for. R. St. The act of (Stats. 447) gave right 1862, p. 1862 a per- action to the representative injury causing sonal an deceased any person, which include both death of minors by implication repealed adults, and section 11 aforesaid (Kramer Ry. Co., parties. 436.) as to the v. Market St. 25 Cal. enacting Nevertheless, codes, language- of section reproduced verbatim, original 11 was as the section 376 of the original form, Procedure. in its Code of Civil Section and, course, gave right included minors as well adults a or adults alike of action for the death minors to the heirs In 1874 personal representatives. section was amended being words a minor” insertion “not “person” sentence, first line of the first word thus ex- cluding operation, from its and section minors 376 was form, given, inserting as above present amended to its retaining “child,” “minor” before the word but otherwise word language of the Practice Act. Section 376 peculiar as thus negligent injury causing action for a gives amended a minor, not in all but cases. the death any parent living, guardian, nor minor has no no If the given by section, her death is either action for his or right of wife, surviving husband, leave a although minor such substantially sisters, who would be as children, or brothers and age if injured by the death as the deceased become guardian, guardian If he has ensued. before death death, against person action for the an may maintain it, statutory whether as a sort of caused but negligence whose of, for, really injured the heirs or trustee representative conjecture. otherwise, left to Unless he is to thereby, or persons and to recover for of such them the benefit sue for suffer, perceive it is difficult how damage by guardian. in such an action If allowed damage could killed, guardian would, injured ward damages personal and recover the ward course, represent adult, might happened to be If the ward ward. also, the terms of section 377 within would be case, he Jan. United Railroads. interesting questions proper parties plaintiff
and further as to might arise. These anomalies that section show carefully skilfully suggest that caution is neces- drawn and *10 sary in application. its construction and regard main argument of for counsel defendant right thereto that, inasmuch the of action the as given who, of only person or death other a minor is statutory earnings provisions, is entitled to its services during recovery was minority, the follows that the conclusion intended to of earn- be limited to the such services and value ings, remaining period only. minority of calculated the persons Counsel call who attention to the that the coincidence services, may are persons sue the child’s the who are entitled minor, if, and that no at the time of the death of a there is person legally who have been entitled existence would earnings lived, no minor, the if he had services and suggested action for also his death can be maintained. It is that for the majority the death of a before father child damage use, recover the own while for death whole for his heir, day he after, parent the sue is an the cannot unless only he can heir. in that case share recover discriminations, argued, legislative These show intent the such, suing recovery parent, to limit the legally if that to which he would have been entitled the child him, lived, untimely deprived and of which death the during is, earnings the the residue of child’s and services minority. regard We mere evidence these anomalies as legislation. recovery careless If is limited to parent’s minority many would in cases consequences the child day If, equally example, dies the absurd. the child could recover parent under rule majority, before heirs, day after, only damages, nominal if it died the parents, would recover which in cases includes a class most life of deceased. them the the full value to absurdity to overcome sufficient In neither alternative is the damages for all cases rule fixed fact that the same meaning, well an obvious terms which have it is stated in expecta- extending recovery to the reasonable established, life, continuance from the pecuniary benefit tion of majority. as well as before the statute prevails, a Missouri, where different In United Railroads. [159 “necessary limits parent or heir to state, injury resulting from The decisions in that such death.” regard ground by parent, to actions based are “necessary words to include injury” should construed as arise from the of that hence, legal and, which right, have had parents’ that in re the case of the death of minor child the - covery was net value of its services probable limited to the expense nurs minority, residue of its and to the ing Co., 286, (Parsons 94 Mo. P. R. burial. v. Missouri 941]; Leahy Davis, S. 121 Mo. W. 464]; W. S. [6 [25 344.) App. Hickman Co., v. Missouri Mo. etc. having to our own which states similar statutes Maryland, Pennsyl Missouri—namely,
follow the same rule as difficulty vania, assigned are and Rhode Island—the reasons beyond estimating prospective damages, if extended juries if are minority, danger verdicts and the of excessive as to what indulge speculation conjecture allowed to might etc. (State v. Baltimore period. occur after that State, -84, 600]; Agricultural Am. Assoc. v. Md. Dec. *11 86, 506, R. v. Rep. 37]; 71 18 Penna. Co. Md. Am. Atl. St. [17 330; Zebe, Kelly, 33 Pa. St. 372; Pa. R. Co. v. 31 St. Penna. Lehigh Rupp, 99; Schnable v. Providence Co. v. 100 St. Pa. have 634].) 24 These reasons Market, 477, I. Atl. R. [53 damages from the equal potency applied when to actions held stated, they have been But, death of adults. as above- including Union, Cali in all the states of the insufficient other recovery fornia, England, where it held that the in expected, reasonably to be pecuniary extend to all benefits embracing legal right otherwise, and whether founded both the expectancy of life common to period the full of the in beneficiary. control If reasons do not deceased and the these adults, in they not control for the death of should actions minors, the statute makes for the death of since actions apply same to both. rule effect, in decide which,
There in are several eases this state damages the jury, cases, may allow as loss that in such ground to pecuniary whitih there is reasonable benefits the minor child parent have received believe the Co., 320, an B. was majority. after v. P. B. Cal. Nehrbas C. of five damages for the death by parent to recover action v. 283- Jan. 1911.] pecuniary loss from question The whether minor children. reasonably be child, to ex services considered, presented and pected minority, was after could argued by The rule established counsel. court held in Beeson Green adults, in as v. actions for the death of stated cases of the Co., 37, applicable Mountain G. was to M. 57 Cal. argument shows that the case death of minors. The of counsel clearly bene required involved and decision expected majority could be esti reasonably fits to so It declares that opinion mated. must be understood. it is not the law this is “limited state that plaintiff by pecuniary injury actual reason sustained far seems loss the services of his children.” So as this say it allowed, loss can be other than disapproved Morgan 518, Am. was S. P. Cal. v. [29 143, Rep. 71, L. far it St. 17 R. A. Pac. But so 603]. prospective holds rule benefits is the same that the adult, the decision death a minor as for the death of Schoettler, 115 unimpeaehed. Lange stands 139], Pac. of a minor by parent was an action for the death Exemplary damages child. been allowed and for that stating proper reason the was reversed. damage cases, that the in such court said statute, allowed, probable value of the life under the “is the throughout brought,” and those in whose behalf the action is suggestion any limitation measured its there no discussion minority. that the record period proper to add had instructed case shows that the court below give for the value compensation could minority. As parent of the child of the services defendant, this instruction appeal was taken will be supreme not a court. But matter for review the broader supreme is much seen that the rule stated *12 given in than that the instruction. Ry. Co.,
It of Fox v. Oakland etc. is claimed that the case 25], overrules the Rep. 216, Pac. Am. St. Cal. [62 may re parent the that a previous and cases establishes during period the only pecuniary benefits cover for the loss of shows case minority. the An examination of the child's in the briefs or discussed presented question this was not that on to this points presented and was involved the Bond United Railboads. appeal. by subject the What said the was court on the was a remark, scarcely amounting mere recital or to a dictum. The child, son, killed, was, years when four half and one old. trial jury they The court had instructed the that could not plaintiff’s beyond probable “assess value deceased, services of majority, until he had attained his taking support into consideration the cost of main- tenance the early helpless part of his life.” The apparently accepted this as the correct measure damages. jurors by A were bound it. verdict for six thousand appeal by dollars’ was rendered. The was It, course, complain defendant. did not of the limita- imposed jury. tions thus contrary, on the On the its counsel damages given, by insisted that the when measured this limited rule, necessarily only were explained excessive and could on theory jurors swayed by were passion or prejudice, court, law, and that the trial as a matter of should granted have ground. a new trial far So as the dam- ages concerned, were this question was the submitted to or introducing subject considered the court. In court, in opinion, bearing upon it, referred to the facts relating it, instructions saying that “the were properly nothing way instructed could award penalty death, grief for his nor for parents, sorrow or but must justly confine their to an verdict amount which would compensate plaintiff probable value services (Italics ours.) the deceased majority.” until he attained his proceeded pre- The court then question consider the sented, is, “upon that whether the evidence and these instruc- excessive, tions” the award of six thousand dollars was the conclusion much and ver- reached that was too that the dict prompted improper part motives on considering motives of the jury. instructions into, purpose under which it acted looked sound- accuracy as law not material. Inasmuch as the their given "properly” mentioned as instructions ness disputed argued, opinion, quotation from the was not above they were as- parties, the fact that but was both conceded court, a discussion proper been sumed have import- great significance jury, motives is of no intended to statement, if in fact that the ance. obvious *13 Jan. Bond all, pure at was at most particular instruction
apply to this weight decision on the to no as a dictum and that it is entitled point. Fox case has been cited say that the
Respondent’s counsel In none subsequent decisions. approval with this relied of it here involved them, however, part is the and wholly without approved. It is by respondent cited or point any from other decision. support on this directing therefore, in erred, The court below only for the services pecuniary value of the son’s consider the time he time of death and the period between that alleged and admitted age. It was of adult have become manhood, strong robust practically he arrived at helped support earning good wages with which he and was a reasonable These circumstances established his mother. have continued probability same conditions would age. have been he It should time after became some include probability and to left to this determine which it benefits could present value of the dur- her reasonably expected he would have bestowed be danger ex- regard ing expectancy to the her of lifé. With remedy only say rule, can from this we cessiveverdicts presides at entirely judge who practically committed duty will care- If he he in the court below. does trial allow a verdict weigh and will not fully the evidence himself gives more dam- he believes to stand for its full amount if reasonably sup- may be ages pecuniary that it than the loss by being deprived of actually posed plaintiff will suffer society, comfort, protection services, earnings, pecuniary be made for rule that allowance child. The comfort, protection of a society, deprivation of loss from now be disturbed. and cannot apparently son is settled before however, the cases have come us, evident to extravagant in which the verdicts us, leads to that it often fact, compensation for sad emotions supposed jury, in allow confining feelings, their verdict injured instead comfort, be said that While it cannot loss. actual benefit either society, protection is never be admitted money property, it must gaining saving traced from one to can seldom connection insistently to allow cautioned not other. Juries should Bond v. United Railroads. *14 compensation for the sorrow and distress always which ensues death, from such a nor for a loss which is remote or conjectural particular in the case. The trial court should be vigilant to aside verdicts where set there is reason to believe done, passion, prejudice, this has been or that sympathy or has jury give influenced the to more than reasonably the facts warrant. We have cause to fear that the trial courts some- theory times act on the can responsibility shift the court, appellate matter to the and that this an excessive appeal. can be corrected on This is a verdict mistake. Our power excessive exists when over the facts are appears law, as a matter of such that the excess or is such as blush, passion, prejudice, or suggest corruption at first on (See jury. Hale part Co., of the v. San Bernardino etc. ; Pac. Wheaton 716, Co., v. Beach North etc. [106 83] 591.) Practically, the trial court must bear 36 Cal. the whole every responsibility case. given properly judgment could not have
The court for the twenty-four which hundred dollars found the mother received probably have from the son had he lived. judgment present not entitled to She was the total receipts, present future for the amount of such value. present of such appears, basis for the calculation value No the court could not determine the correct and therefore amount due on that account. necessary specifically allege the not of society,
It was loss given Evidence comfort, protection, or services. could be relating and allowance could thereto be made the facts there- general allegation damages. (Morgan for under 518, Rep. Co., 143, 95 Cal. Am. St. 17 L. 71, S. P. R. A. [29 Bridge Peden 603]; v. American 523; 30 Pac. Fed. Ry. Co., 8 Hang 31, Northern N. Dak. v. Great. Am. St. 97, 664].) 42 L. R. A. Rep. 77 N. W. instructions, as we presume, followed must
If the $4,095 accruing allowed as the they must have loss society, comfort, solely protection expectancy mothers of life. the son The evi- presume We sufficient, record. must dence is law, that allowance. to sustain We could matter against weight, the decision of the lower court, consider same, even if it were set to sustain forth in if it tended Jan. v. United Bond advised as to the reasons which led We are not
the record. whole judgment for the amount to refuse ground general for a new trial If a motion this verdict. regularly interposed, that court would have properly power aside the verdict. the absence reduce set motion, granted plaintiff’s have motion to it should forty-five dollars, judgment for hundred render .unless obviously passion, prejudice, the result of was so amount ordering disregard justify as to the court of the instructions so, do motion. it did not it is to be trial of its own As new presumed was no cause for such action. that there the cause is remanded to judgment is reversed plain- with directions render court below *15 dollars, forty-five preju- without tiff for the sum hundred trial, any for a new pending motion the defendant dice to defendant, has, if to move there- new for a trial. J., Angellotti, Lorigan, J., Sloss, J., Melvin, con- J. curred. appellant having been application
An made for a foregoing' judgment, the opinion of the following modification February 1911:— thereon on was rendered The appellant modify THE asks court COURT. given adding a judgment heretofore direction that judgment in the court below the giving the accrued interest included. shall be Our verdict consideration of the on the entirely in judgment was relation to the state of verdict judgment appealed given the time the was at the ease with period reference to below. It court entry court for the sum we directed going dollars, upon the down forty-five hundred of. the no intention to restrict power There was remittitur. clerk, below, perform or of its the ministerial court interest which has accrued computing between the duty entry verdict judg- of the and the of the return date judgment finally including entered, pro- it in ment of the Code of Civil Procedure. The by section vided liberty perform duty, will be at or see that below notwithstanding language of so, the mandate does its clerk given by this court. hereinbefore decision