29 Nev. 552 | Nev. | 1907
By the Court,
This is an action brought by respondent in the Second Judicial District Court of the State of Nevada, in and for Washoe County, to recover a judgment for damages against the appellant for the death of the said George Jorgensen while employed in respondent’s paper mill at Floriston, in the State of California, which death is alleged to have been occasioned by appellant’s negligence..
It was decedent’s duty to cook wood pulp in a large cylindrical digester, and, when the same had been properly cooked, to draw it off from said digester to what was known as the "blow-pit tank.” The evidence shows that at about noon, August 31, 1905, the deceased was found buried in a mass of paper pulp at the foot of the digester. The twelve-inch valve at the bottom of the digester was found to be open about two inches and the discharge pipe was broken off immediately beyond the valve, and for the space of a foot, or a foot and a half, it had fallen away. The action is brought for the benefit of decedent’s father and mother, who are residents of Denmark.
It is admitted by the pleadings that at the time of the death of the said decedent and at the time of the action the
At the times in question the code of this state contained, and now contains, the following provisions:
"Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the persons who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages notwithstanding the death of the person injured; and although the death shall have been caused under such circumstances as amount in law to a felony. Such liability, however, where not discharged by agreement and settlement shall exist only in so far as the same shall be ascertained and adjudged by a state or federal court of competent jurisdiction in this state in an action brought for that purpose. If the person or corporation against whom damages are claimed cannot be duly served with process in this state, the action to ascertain and adjudge liability for such damages may be brought and prosecuted in any court of competent jurisdiction in any state or territory where such person or corporation is found and duly served with process thereof.” (Comp. Laws, 3983, as amended by Stats. 1905, p. 254, e. 148.) '
"The proceeds of any judgment obtained in any action brought under the provisions of this act shall not be liable*558 for any debt of .the deceased; provided, he or she shall have left a husband, wife, child, father, mother, brother, sister, or child or children of a deceased child; but shall be distributed as follows: First — If there be a surviving husband or wife, and no child, then to such husband or wife; if there be a surviving husband or wife, and a child or children, or grandchildren, then equally to each, the grandchild or children taking by right of representation; if there be no child or grandchild, then to a surviving brother or sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore named, then the proceeds of such judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons; provided, every such action shall be brought by and in the name of the personal representative or representatives of such deceased person; and, provided further, the jury in every such action may give such damages, pecuniary and exemplary, as they shall deem fair and just, and may take into consideration the pecuniary injury resulting from such death to the kindred as herein named.” (Comp. Laws, 3984.)
Trial was had by jury and a judgment repdered in favor of plaintiff for $10,000 damages. From the judgment and an order denying defendant’s motion for a new trial, defendant appeals.
A variety of decisions may be found upon the question whether the courts of one state will assume jurisdiction of an action brought therein for damages for a death occasioned in another state. A number of early decisions held
Both the early and the modern views of the courts generally are succinctly stated in the comparatively modern work of Minor on Conflict of Laws (1901). The author says: ''Section 200. Death by Wrongful Act — Increasing Liberality of the Courts. In the cases on this subject two main questions were first presented. If a tortious death is actionable by the lex fori only, will that statute govern? If actionable by the lex delicti, will that statute control? The first question was at once decided in the negative, and the correctness of the ruling cannot be questioned. It is with regard to the second question that the greatest conflict of opinion has occurred. The view first advanced was that, although the lex delicti made the tortious death actionable, it would be of no avail upon an action brought in another state, even though the death was made actionable by the lex fori also, because such statutes were to be regarded as penal, or at least as having no exterritorial force. As more liberal ideas advanced, the next step taken by the courts was to recognize the statutes as remedial, not penal, and to permit actions to be brought in one state for a tortious death resulting in another state and actionable there, provided there was a statute substantially similar in the state of the forum. But if there were any very marked dissimilarities between the statutes of the two states, this was still taken to indicate that the enforcement of the lex delicti was contrary to the policy of the forum, and the right to sue there would be denied. The present tendency of the more recent decisions
In support of the last paragraph quoted the author cites the following authorities: Stewart v. Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537; Texas R. R. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Huntington v. Attrill, 146 U. S. 657, 670, 13 Sup. Ct. 224, 36 L. Ed. 1123; Dennick v. Railroad Co., 103 U. S. 11, 26 L. Ed. 439; Law v. Railroad Co. (C. C.), 91 Fed. 817, 819; Higgins v. Railroad Co., 155 Mass. 176, 29 N. E. 535, 536, 31 Am. St. Rep. 544; Nelson v. Railroad Co., 88 Va. 971, 14 S. E. 839, 15 L. R. A. 583; Herrick v. Railroad Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771, 773. To these we add the following: Wooden v. Western New York R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Weaver v. B. & O. R. R. Co., 21 D. C. 499; McLeod v. Railroad Company, 58 Vt. 727, 6 Atl. 648; Johnson v. Railway Co., 91 Iowa, 248, 59 N. W. 66; St. Louis Ry. Co. v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. St. Rep. 65; 13 Cyc. 313, et seq.
The right to bring such an action in a foreign jurisdiction does not rest, as some of the decisions seem to put it, upon principles of comity, but rather because "the action by which the remedy is to be enforced is a personal, and not a real, action, and is of that character which the law recognizes as transitory, and not local.” Because the cause of action is in its nature transitory, courts of other jurisdictions will enforce such rights growing out of the laws of a foreign state, unless it can be said that such laws are contrary to the public policy of the state of the forum. As the common law did not recognize this cause of action, it may be said that the public policy of a state in this regard only goes' to the extent that it by
A very proper rule for guidance may be deduced from the following language of the Supreme Court of Appeals of New York in Wooden v. Railroad Company, supra: "We refer to the lex fori, and measure it by and compare it with the lex loci, I think, for two reasons: One, that the party defendant may not be subjected to different and varying responsibilities; and the other that we may know that we are not lending our tribunals to enforce a right which we do not recognize, and which is against our own public policy, and we do not refer to our law as creating the cause of action which we enforce.”
The Supreme Court of the United States the first time the question was presented to it adopted a very liberal view, which later decisions have broadened, as the following extract from the opinion of the court by Brewer, J., in Stewart v. B. & O. R. R. Co., 168 U. S. 445, 448, 18 Sup. Ct. 105, 106, 42 L. Ed. 537, will indicate: "An action to recover damages for a tort is not local, but transitory, and can as a general rule be maintained .wherever the wrongdoer can be found. (Dennick v. Railroad Company, 103 U. S. 11, 26 L. Ed. 439.) It may well be that, where a purely statutory right is created, the special remedy provided by the statute for the enforcement of that right must be pursued, but, where the statute simply takes away a common-law obstacle to a recovery for an admitted tort, it would seem not unreasonable to hold that an action for that tort can be maintained in any state in which that common-law obstacle has been removed. At least, it has been held by this court in repeated cases that an action for such a tort can be maintained'where the statute of the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced.’ ”
In this material respect the statute differs from that construed in the case of Coyne v. Southern Pacific Co. (recently decided by the Circuit Court of the United States for the District of Utah), 155 Fed. 683, and that case, therefore, throws little, if 'any, light upon the question under consideration in this case. While the legislature of this state has restricted the extent to which actions of this nature are transitory, it cannot be said that there is anything in the act so restricting the nature of the action itself as would warrant a holding that there is a manifested policy against the cause of action. Doubtless the reason that actuated the legislature in making the restriction was the idea that justice to both parties could more readily or conveniently be had by requiring the action to be brought in the courts of this state for
While we agree with appellant’s counsel that, so far as our knowledge and research goes, and with the light of respondent’s brief, "proximate negligence” is something new to the jurisprudence of personal damages, nevertheless, under the facts of this case, we are unable to see in what way this instruction could have been prejudicial to the defendant. Conceding that there may be such a condition which could appropriately be designated as "proximate negligence,” it would necessarily be a condition closely approaching, but which could hardly be said to reach, the degree of negligence itself. An instruction, the effect of which would be that something less than negligence upon the part of the person injured might be sufficient to relieve the master from liability for the latter’s negligence, could hardly be prejudicial to a defendant in any case. While we wish to be understood clearly as not, at this time, recommending this instruction as a model for use in any case, nor as holding that it is not erroneous, we do hold that it could not have prejudiced defendant’s rights in this case. In this connection counsel for appellant have not been any more convincing in their argument that this instruction was prejudicial to defendant than has counsel for respondent been successful in finding some authority that would stand sponsor for the expression " proximate negligence.”
Action was brought in the Burk case, supra, for the collateral heirs, two brothers and a sister of decedent. The same instruction was requested (by the leading counsel for appellant in this case) in the case of Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 237, 73 Pac. 163, and its refusal sustained. In the latter case action was brought for the benefit of the father and mother for the death of their daughter, occasioned by the negligence of the defendant, Standard Biscuit Company. In the Hillébrand case, supra, the court, after distinguishing the two cases upon the facts, said: "Moreover, in the latter case (125 Cal. 364, 57 Pac. 1065, 73 Am. St. Rep. 52) the action was brought by collateral relatives who under no circumstances could have any legal right to pecuniary aid from the deceased, while parents may have the legal right to financial support from a child, and at any timé during its life.” This case was not cited to this court, but we think it sufficiently answers appellant’s contention. See, also, the case of In re California Nav. & Imp. Co. (D. C.), 110 Fed. 670, 677.
Whether or not $10,000 is a large or a small damage to pay for a human life depends entirely upon the facts of a given case. In one sense no amount of money might compensate for a human life, but the law only looks at the question from the point of actual monetary damage sustained by the person for whose benefit the action is brought, and not that inflicted upon the decedent. (Redfield v. Oakland R. Co., 110 Cal. 277, 42 Pac. 822.) Where more than nominal damages is claimed, such damages must be determined very largely upon questions of relationship and dependency existing between the decedent and the beneficiary at the time of
In the recent case of Sneed v. Marysville Gas Co., 149 Cal. 704, 710, 87 Pac. 376, 378, the Supreme Court of California, discussing the measure of damages in eases of this kind,' said: "With regard to the measure of damages, in view'of the argument made, and of the probability of another trial, it is proper to say that it is definitely settled that under our statute the damages to be recovered for an injury causing death are always limited to the pecuniary loss suffered by the heirs of the person killed by reason of his death. (Munro v. Dredging Co., 84 Cal. 515, 24 Pac. 303, 18 Am. St. Rep. 248; Morgan v. Southern Pacific Co., 95 Cal. 510, 30 Pac. 603, 17 L. R. A. 71, 29 Am. St. Rep. 143; Pepper v. Southern Pacific Co., 105 Cal. 401, 38 Pac. 974; Green v. Southern Pacific Co., 122 Cal. 566, 55 Pac. 577; Wales v. Pacific E. M. Co., 130 Cal. 523, 62 Pac. 932, 1120; Keast v. Santa Ysabel Co., 136 Cal. 260, 68 Pac. 771; Dyasv. Southern Pacific Co., 140 Cal. 308, 73 Pac. 972; Hillebrand v. Standard B. Co., 139 Cal. 236, 73 Pac. 163.) We think it may be further said that this pecuniary loss may be either a loss arising from the deprivation of something to' which such heirs would have been legally entitled if the person had lived, or a loss arising from a deprivation of benefits which, from all the circumstances of the particular case, it could be reasonably expected such heirs would have received from the deceased had his life not been taken, although the obligation resting on him to bestow
In the case of Lange v. Schoettler, 115 Cal. 388, 390, 47 Pac. 139, the court said: "Only such damages can be recovered as the statute authorizes, and, in the absence of an express provision authorizing a different rule, the only damage allowed is the probable value of the life to those in whose behalf the action is brought. Of course, this cannot include any grievance personal to the deceased or any damage allowed in .the interest of the people as punishment. The relatives, or the representatives in their behalf, can recover the value of that which they have lost through the wrongful act of the defendant, and nothing more. It is true, in the case of a mother or a wife, the jury have been allowed to consider the fact that they were deprived of the comfort, society, and protection of a son or husband, but it has been always held that this was in strict accordance with the rule that only the pecuniary value of the life to the relatives could be recovered. The probable comfort, society, and protection of the deceased had some pecuniary value. The rule for computing damages in section 377 is expressly made applicable, and no doubt it was thus left in the judgment of the jury because all the elements upon which the estimate of pecuniary loss was to be based were problematical. The comfort, society, and protection, as well as the support which is to be estimated, is only something which might have been. The age, character, disposition, and health of the deceased were all to be taken into consideration. Everything is uncertain and indefinite. Therefore it is left to the jury to say what they deem just, and if they have not made their estimate upon a wrong • basis, and have not acted under the influence of passion or prejudice, their judgment is final.”
In Morgan v. Southern Pacific Co., 95 Cal. 501, 508, 30 Pac. 601, 602, the court said: "There is no absolute rule in such a case; and about all that can be safely said on the subject may be found in the opinion of the court in Aldrich v. Palmer,
The general rule governing appellate courts in cases of this kind is concisely stated in 13 Cyc. as follows: " While the general rule is that the recovery must be confined to strictly pecuniary damages, the jury are not bound by any fixed and precise rules in estimating the amount of damages, save by the .statutory limit, where such limit exists, but may give compensation for all injuries, proceeding from whatever source, and their discretion in fixing the amount of damages should not be interfered with by the court, unless it has been palpably abused. The rule has sometimes been thus stated: To justify interference by the court with the verdict of the jury, it must appear that some rule of law has been violated, or else that the verdict is so excessive or grossly inadequate as to indicate partiality, passion, or prejudice in the minds of the jurors. * * * However, the discretion of the jury in awarding damages is under the control of the court, and damages out of all proportion to the actual earnings of the deceased or to any reasonable expectation of pecuniary benefit from him will not be allowed; and, where the circumstances of the case or the evidence produced indicate that the verdict was the result of bias, prejudice, or gross overestimate, the courts have not hesitated to set such verdict aside. The courts have shown less hesitation in setting aside the verdict where the action is brought for the benefit of next of kin not dependent upon the deceased than where the action is for the benefit of the widow or children, and, where .the amount awarded is clearly in excess of the expectation of pecuniary benefit to be derived from deceased by such'next of kin, the judgment will be reversed.” (13 Cyc. pp. 375-379, and authorities cited.)
Tiffany, in his work, "Death by Wrongful Act,” says: "The proper measure of damages is the present worth of the amount which it is reasonably probable the deceased would have contributed to the support of the parent during the latter's expectancy of life, in proportion to the amount he was contributing at the time of his death, not exceeding his expectancy of life, though it would seem that the rule is not to be applied with mathematical strictness, and that the jury may properly take into consideration the increasing wants of the parent, and the increasing ability of the child to supply them. In Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5, 46 N. W. 79, it was said: 'The proper estimate can usually be arrived at with approximate accuracy by taking into account the calling of the deceased, and the income derived-therefrom, his health, age, talents, habits of industry, his success in life in the past, as well as the amount of aid in money or services which he was accustomed to furnish the next of kin, and, if-the verdict is greatly in excess of the sum thus arrived at, the court will set it aside or cut it down.' ” (Section 168, p. 211.) In notes to sections 168 and 169 the author sets forth a brief reference to thirty or more decisions showing " the .application of the rules in actions for the death of adult children, particularly with reference to the amount of the verdict.”
In the cases referred to the nearest approach to a judgment as large as that given in this case is that of Little Rock Ry. Co. v. Voss (Ark.), 18 S. W. 172, where it was held that a judgment for $6,500 was not excessive upon a showing that the deceased contributed to the support of his mother and her invalid daughter, who belonged to her family, $30 to $50
While it cannot be said that a judgment in one case is a proper criterion for a judgment in another, and while each case must be considered from its own facts and circumstances established by proof, and while a very large latitude is allowed the jury in the estimate of damages, nevertheless, if the award of damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury, such judgment must be set aside or else so modified as to bring it within such a limit as the proofs might justify.
In this case the only facts established by the record which the jury could consider in its estimate of damages were that the decedent at the time of his death was about 30 years of age; that he was earning at the time of his death $3 a day; that he had been in this country about seven years and had been employed at various places; that he had on deposit in bank at the time of his death $462.12; that he left surviving him a father and mother, residents and subjects of the kingdom of Denmark, of the ages, respectively, of 68 and 58
We have decided to reverse the judgment and grant a new trial, unless respondent shall consent to a modification of the judgment to the sum of $3,000, and, if such consent is filed, the judgment to be modified accordingly and as modified affirmed.
For the reasons heretofore given, it is ordered that, unless counsel for respondent shall within ten days from the receipt of a copy of this opinion and order file in this court and cause written consent that the judgment be modified by reducing the same to the sum of $3,000, such judgment is reversed and a new trial ordered. In the event such written consent is filed, it is the order that the judgment be modified accordingly by reducing the same to the sum of $3,000, and the order denying a motion for a new trial be affirmed.