89 P. 588 | Ariz. | 1907
— B. Friedman, the appellee, was the-tenant of Ismael T. De Amado, the appellant. Upon Friedman’s child, aged four years and four months, an adobe wall in the leased premises fell and instantly killed him. Friedman sued Mrs. De Amado for damages in the sum of $4,800, alleging that the falling of the wall was due to the negligence of the defendant. From a judgment upon a verdict for the full amount sued for, the defendant has appealed.
1. The first assignment of error is based upon the contention that the eomplaint does not state facts sufficient to constitute a cause of action. It is alleged in the complaint that plaintiff and Ms wife are father and mother of the deceased; that plaintiff, on a certain day, was defendant’s tenant of the premises in question then owned by defendant; that the defendant wrongfully and negligently kept and maintained, and suffered to remain upon the premises, a certain adobe wall exposed and in a dangerous condition; that defendant knowingly maintained said adobe wall with utter disregard for persons living and doing business in and upon said premises, and knowingly and willfully suffered said wall to remain in said dangerous condition after being notified of the said dangerous condition of the said adobe wall; that without fault or negligence on the part of the decedent or the plaintiff the said wall fell upon and instantly killed the decedent; that by reason of the premises, and by virtue of paragraph 2764, Revised Statutes, a cause of action has arisen in favor of plain
2. It is next contended: “That the court erred in instruct
3. The third assignment of error is: “That the court erred in its instruction to the jury that the questions whether or not the plaintiff was negligent or whether or not the deceased boy was negligent could not be considered by them in the case.” This assignment of error is not in accordance with subdivision 4 of rule 7 of this court, which reads as follows: “If the assignment of error be to the giving of instructions to the jury by the lower court, the appellant must state wherein the instruction complained of is erroneous in its statement of the law applicable to the case or any particular fact or facts thereof.” (8 Ariz. xi; 71 Pac. viii.) It is not disclosed in the assignment of error, or contended in the brief, that any fact or facts were developed upon the trial to which a contrary instruction would have been applicable or which makes these instructions harmful if in fact they are not sound in law. Furthermore the instruction which the court gave: ‘ ‘ The negligence of the decedent, if he was negligent, cannot be considered by you. in this case, as the decedent was of such tender age that the law would not impute negligence to him” — is unquestionably sound as applied to the acts of an infant of four years and four months. See the authorities collected in 7 American & English Encyclopedia of Law, second edition, 405. Still further, contributory negligence is a matter of de
It is not pleaded by answer in this case that either the plaintiff or the decedent contributed by his negligence to the decedent’s death. Still further, ignoring the defect in the assignment of error and its presentation in the brief, upon a careful examination of all the testimony, it does not appear that the facts brought out by the plaintiff in making his case disclosed any negligence upon his part, so that the exception above noted cannot be invoked; nor, finally, was any evidence introduced on behalf of the defendant tending to show that the plaintiff was negligent. Therefore, in no aspect does the case call for a determination of the interesting question propounded by the appellant whether if the death of the infant was contributed to by the negligence of the father, that negligence could be imputed to the infant and interposed as a defense to an action brought under the statute by the father in a representative capacity.
“I instruct you that if you should find that the defendant is guilty of the wrongful act, as charged in the complaint, and that the same resulted in the death of the child, Leo Friedman, then the plaintiff is entitled to recover in this; ease, for the benefit of the estate, such damages as the jury may deem from the evidence and proofs, as fair and just compensation therefor, not exceeding the amount claimed in the complaint, and in arriving at your verdict, you should consider what pecuniary benefit the estate of said deceased would have derived, had said adobe wall not fallen upon him. You are to consider the probability of the said child living and growing to manhood and obtaining property, which the law, upon his death, if intestate, would have passed to his legal representatives ; you are to consider the age and health of the child, his expectancy and probability of living, and his mental and physical vigor and the probability of his accumulating property. You are to consider the damages that the said child’s estate has sustained.”
“I instruct you, in ascertaining the amount of damages, you will consider the evidence as to the age and sex of the child who was killed; also the evidence, if any, of the position of life of the parents and of the expectancy of life which the child had, and from these form an estimate of the amount which the child would have saved from his earnings between the time when he attained the age of twenty-one years and the date which he might reasonably be expected to live. Such estimate will be the measure of damages in this case.”
The appellant makes a contention, which, from her point of view, is unique, that the true rule is “that a child’s estate is worth something at the time of his death, even if he never could have become of age.” In the light of that criticism, the instructions were too favorable to the defendant, wherefore she should not complain. The assignment of error fails to specify any facts disclosed upon the trial by reason of which any expression in these instructions may be held to be inapplicable or misleading. In them the court recognized the well-known rule that the earnings of an infant, if any, are the property of his father, while the infant is under the father’s care, and may not, as a matter of law, be held to increase his estate. We deem that they fairly and appropriately presented to the jury the matter involved in them.
6. The seventh and eighth assignments, insufficient under our rules, attempt to raise a consideration of the amount of the judgment. We have already said “the statute provides that the jury shall give such damages as they may deem fair and just, not exceeding $5,000. Where there are no fixed rules to ascertain the amount of damages, the amount must be left to the sound sense and good judgment of the jury upon all the circumstances of the case; and such verdict should not be set aside, unless it appears that the jury acted under some bias or prejudice, or other improper influence.” Southern Pac. Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, 404. It is pointed out by appellant that the estate of a decedent, the continuance of whose life would be of the greatest conceivable value to his estate, could be compensated for the tortious death of such decedent in an amount at most $200 greater than the amount allowed by this jury to the estate of this infant. But the statute does not contemplate that the award shall be so ascertained by the jury as to take its proper place in a scale from unit to $5,000, based upon the ratios of the values of all conceivable persons to their estates ranging upward from a unit to a maximum. The maximum recovery fixed by statute is not the legislature’s conception of the maximum value of the life of a human being to his estate, and is not so to be treated by the court or jury. On the contrary, it is rather a recognition that the value of- the life of many a person to his estate is in excess of $5,000. The theory of the .statute is to relieve defendants from a possible oppression from the consequences of their actions. If the value of the decedent’s life to his estate is actually $10,000 it is as “fair and just,” in the language of the statute, that the jury should fix the damages at $5,000 as in a case where the wife of the decedent was worth $100,000 to his estate. In the ease before us, it is not so intrinsically improbable that the life of a “strong, healthy, intelligent” boy (as by the testimony he is disclosed to have been), aged four years and four months, should be worth $4,800 to his estate as to make it manifest from the fact as to the age alone that the jury was not fair and just in its verdict, but was influenced by passion or prejudice. Similar conclusions have been reached by other courts. Houghkirk v.
The judgment of the district court is affirmed.
KENT, C. J., and SLOAN and DOAN, JJ., concur.