123 Kan. 58 | Kan. | 1927
The opinion of the court was delivered by
The opinion in this action was filed on January 8, 1927. (Briley v. Nussbaum, 122 Kan. 438.) A petition for a rehearing has been filed. It is urged that the instruction set out in the former opinion did not correctly state the law. What was there said will not be repeated here in full. So much of the instruction there set out as stated that “the. plaintiffs who are the parents of the deceased child had a right to anticipate that they would receive help and pecuniary benefit from her as long as she lived up to the death of the last surviving parent,” was incorrect because, taken by itself, the language would take from the jury the power to determine, under the circumstances disclosed by the evidence, whether or not the deceased would have contributed to the support of her parents. However, that matter was submitted to the jury in the instruction which contained the quoted erroneous language.
. Another matter urged is that the instruction set out in the former opinion did not “tell the jury that the cost of education and maintenance of the child to its majority should be deducted from the value of its services.” That matter was included within another instruction, in which the court said:
“You are instructed that from the amounts which you find to be the value' of any services which the deceased would have rendered the plaintiffs had she lived, and the amounts of any sums of money or the value of any property which the deceased would have contributed to the plaintiffs had she lived,
. . . you should deduct the amount of the cost to the plaintiffs of the rearing and maintenance of said deceased had she lived, including the cost of education, clothing, food and other incidental expenses.”
The instruction as a whole, while subject to criticism, cannot be said to have been prejudicially erroneous. For that reason, with this modification, the former opinion and judgment are adhered to.
