164 Iowa 552 | Iowa | 1914
The subject is now regulated by section 3471 of the Code, providing that: “A father, or in case of his death or imprisonment or desertion of his family, the mother, may as plaintiff maintain an action for the expenses and actual loss of service resulting from the injury or death of a minor child.” In view of the previous state of the law, there can be no doubt of what was intended by this statute or the word “expenses.” It has reference to the reasonable cost incurred for medical attendance, nursing and the like, including that of suitable burial. Cleary v. City Ry. Co., 76 Cal. 240 (18 Pac. 269); 6 Thomp. Neg., section 7093. Statutes authorizing recovery for the wrongful death of a minor child, not specifying expenses, are construed in England and several of the states so as not to include the cost of burial. See Dalton v. Ry., 4 C. B. (N. S.) 296. Consolidated Traction Co. v. Hone, 60 N. J. Law, 444 (38 Atl. 759). These decisions are not in point, and funeral expenses were rightly held recoverable.
It seems well settled that proof, of what has been paid for an article of personal property recently in the open market, or when sold at auction, or when it has no market value and its change of condition is shown, is received as furnishing some evidence of its actual or reasonable value. 3 Chamberlayne on Evidence, sections 2175-1b, 2175-1e. Thus in Bird v. Everard, 4 Misc. Rep. 104 (23 N. Y. Supp. 1008), what plaintiff paid for an overcoat in the absence of other proof was held sufficient to show its value and in Small v. Pool, 30 N. C. 47, evidence of what plaintiff gave for a slave and what he afterwards sold her for was admitted as an aid to the jury in assessing damages.
In Motton v. Smith, 27 R. I. 57 (60 Atl. 681, 8 Ann. Cas. 831), the court observed that “an owner is doubtless usually qualified to state the cost price of ’articles of personal property, and from that, with information as to age and wear, the jury might estimate values.” In Swanson v. Railway, 116 Iowa, 304, the holding was that a witness might testify “to the price paid for land as tending to show its market value.” In Richmond v. Railway, 40 Iowa, 264, the cost of a building was received in evidence, not as the measure of damages, but as a means to aid the jury in arriving at its present value. See McMahon v. City of Dubuque, 107 Iowa, 62; Jones v. Morgan, 90 N. Y. 4 (43 Am. Rep. 131); Sullivan v. Lear, 23 Fla. 463 (2 South. 846, 11 Am. St. Rep. 388) ; Thompson v. Anderson, 94 Iowa, 554.
Other eases might be cited illustrating the application
In Schimpf v. Sliter, 64 Hun, 463 (19 N. Y. Supp. 644), it was adjudged that “to allow proof of the amouxxt paid by plaixxtiff to his physician without showing the value of the services” was error, and this ruling was confirmed by the Court of Appeals in Gumb v. Railway, 114 N. Y. 411 (21 N. E. 993), where it was held to be error to allow the plaintiff to testify to the amount paid for the reparation of a wagoxx without evidence pf the value thereof and also in allowing him to testify what was a physician’s charge for his services without evidence of payment or the value of the services other .than the remark of the physician stating the amount of his bill and that it was small.
In Sachra, v. Town of Manilla, 120 Iowa, 562, the court instructed that the plaintiff should be allowed for money expended for medical treatment, and this was criticized for not stating instead that he was entitled to recover the reasonable value of the expenses incurred therefor, and the court,, after directing attention to the fact that the evidence indicated that the services of one physician were worth $100',, and that the bill of the other was not over $20, held that this; justified the instruction, citing Flanagan v. Railway, 83 Iowa, 639, where the expenses were shown to be $40 or $50, and the court, after stating it was not "pretended that the expenditure of such a sum was unreasonable or unnecessary, ’ ’ decided that it would not be presumed that the finding of the jury exceeded such amount, and therefore no prejudice was suffered from the instruction.
In Vedder v. Delaney, 122 Iowa, 583, it appeared that the plaintiff after being injured was kept by the officers charged by the law with relief of the poor, and cared for
The general statement of the cost of funeral expenses, in the absence of any other evidence, did not justify the submission of the reasonable expense thereof to the jury.
The plaintiff was entitled to recover the present worth of the probable’earnings of the deceased up to the time he would have become of age, less the probable cost of clothing, maintenance and the like (Benton v. Railway, 55 Iowa, 496), and it is manifest from the figures given that more than this was allowed.
If the plaintiff cares to file a remittitur of enough with the $150 allowed for funeral expenses to reduce the- judgment to $1,000, with interest, within thirty days, it will stand affirmed, with costs; otherwise reversed. Affirmed on condition.