152 A. 795 | R.I. | 1931
This is an action of trespass on the case for negligence. The action is brought under Section 14, Chapter 333, General Laws, 1923, to recover damages for the death of plaintiff's daughter, a child five years and two months of age at the time of her death. As no administrator of here estate was appointed the father sues in behalf of all the beneficiaries. A jury in the Superior Court returned a verdict for the plaintiff in the sum of $4,698.91 and the case is in this court on defendant's bill of exceptions.
All of the exceptions bearing on the liability of the defendant have been waived. The only questions presented relate to the damages and the admission of certain testimony to establish the same.
The bill of exceptions does not conform to the statute and to the decisions of this court. The statute requires that a party filing a bill of exceptions . . . "shall state separately and clearly the exceptions relied upon." The bill contains nine paragraphs. The first paragraph, although not in proper form, will pass as an exception to the refusal of the trial justice to grant a new trial. The next seven paragraphs are not exceptions at all but reasons assigned in support of the motion for a new trial. These may properly be set forth in a brief but they have no place in a bill of exceptions. The ninth paragraph is as follows: "9. The trial justice erred in his rulings in the course of the trial as to which exceptions were noted on pp. 27, 41, 42, 43, 44, 47, 69, 72, 73, 74, 76, 77, 80, and 81 of the transcript." Most of these exceptions are to the admission of testimony. One is an exception to the action of the court in permitting plaintiff to reopen his case and one is to the refusal of the court to direct a verdict for the defendant. To group a number of exceptions in this manner does not conform to the statute and our decisions relating to the same. See Nichols v.Mason Co.,
The defendant rests his case here on the proposition that for the death of a child only nominal damages may be recovered unless it be the unusual case of a child who has demonstrated a capacity for some particular vocation.
In Dimitri v. Cienci Son,
It is contended that, owing to the fact that the decedent in the instant case was too young to have had any earning capacity, it is impossible to comply with the above rule and therefore only nominal damages can be recovered. We *161 can not give our assent to this view of the law applicable to a case of this kind. To so hold would in effect result in a nullification of the statute. It is true that no rule approximating certainty for the assessment of damages can be laid down in actions for damages to the estate of a child too young to have demonstrated an earning capacity but it does not follow that for this reason the courts are powerless to afford a remedy.
We are of the opinion that the practical rule in these cases is to bring before a jury the facts relating to the age, sex, physical and mental characteristics of the child, the position in life and earning capacity of its parents as bearing upon the conditions under which the child would probably have been reared and educated and leave it to the jury to assess the damages subject to the power and duty of the trial justice to confine the award within the bounds of reasonable probability. While this rule leaves much to be desired as to certainty it is preferable to the alternative urged by the defendant which would permit one legally responsible for the death of a child to escape civil liability therefor. There is ample authority for this view of the law. Tiffany, Death by Wrongful Act, 2d ed. 351; 8 R.C.L. pp. 835 to 842; Hoon v. Beaver Valley Traction Co.,
At the trial in the court below the plaintiff was permitted to testify that he intended to educate the child to become a school teacher and teachers in the public schools of Woonsocket were called to testify as to their earnings and the amount they were able to save after paying their living expenses. This line of testimony was inadmissible. Parents *162 may influence but they can not always determine the occupation of their children and such testimony injects further uncertainty into a case already replete with uncertainties. The defendant's exception to the admission of this evidence is sustained.
All of the other exceptions are overruled.
The case is remitted to the Superior Court for a new trial on the question of damages only.