67 Neb. 568 | Neb. | 1903
This case was previously before the court, and the opinion by which it was then decided is found in 58 Nebr., 678. The former judgment against the railroad company was there reversed, because the petition did not set forth the facts indicating pecuniary loss on the part of the next of kin by the death of the plaintiff’s intestate. After the reversal in that action, an amended petition was filed, setting out that the deceased, prior to his death, for many years had expended, and would have continued to expend, large sums of money for the benefit of his mother, brothers and sisters; that at the time of his death he was employed at a salary of $1,800; that he was unmarried, and was adding, and would have continued to add, to his estate, and to the pecuniary interest and expectancy of those relatives in it. The amendment consisted simply of those added particulars of pecuniary loss which were found to be wanting in the original petition.
The errors complained of are that the action was at the time of the amendment barred by the statute of limitations; that the court erred in permitting these amendments; that the damages are excessive; and that there is no next of kin, so far as the evidence shows.
Counsel for plaintiff in error say that the former de-
With regard to the propriety of the amendment and of the court’s action in permitting it, it would certainly seem that there can be as little question. Section 144 of the Code of Civil Procedure permits the court to allow amendments by correcting a mistake in the name of the party or a mistake in any other respect, or by inserting other allegations material to the case. In the original petition a general allegation of damages was made. The petition was held defective for not inserting the particulars of the damages. To have refused the plaintiff permission to insert these particulars would have been a denial of justice because of the oversight of the pleader. Such action might properly have been complained of as an abuse of discretion.
It is urged in support of the complaint as to excessive damages that the testimony of the mother sIioavs that sbe had seen her son only three times between 1887 and August, 1894, the date of his death; that during these seven years he had made gifts and paid bills for her to the amount of about |200; that her expectancy of life at that time was less than fourteen years; tliat the sister had testified that during these seven years she had received gifts from her brother to the amount of $15 or $20, and her expectancy of life Avas less than twenty-nine years. It is contended that on this basis the verdict of the jury, $1,100, is not supported by the evidence. The evidence, however, sIioavs that the deceased Avas thirty-five years of age, able-bodied and of good habits, successful in business, and employed at a salary of $1,800 a year, and accustomed to make gifts to his relatives, and provide for the comfort and welfare of his mother. The action of the jury in fixing his pecuniary value to the mother and sister at $1,100 seems to have been reasonable.
With regard to the complaint that there is no showing
It is recommended that the judgment of the district court he affirmed.
For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.