111 P. 550 | Mont. | 1910
delivered tbe opinion of tbe court.
Tbe plaintiff in tbis action is tbe father of J. L. Gilman, wbo at tbe time of bis death was about eighteen, years of age. He was billed through tbe alleged negligence of tbe defendant corporation and its managing agent, one Connolly, in putting bfm, its employee, to worb in a trench without warning as to its dangerous condition. Tbe trial resulted in a verdict for $3,000 in favor of tbe plaintiff. Judgment was entered on tbe verdict, from which judgment and an order denying a new trial tbe defendant has appealed. '
1. It is contended that tbe complaint does not state facts sufficient to constitute a cause of action. Our examination thereof,
2. It is also contended that the evidence is insufficient to sustain a finding that the deceased was in the employ of the defendant at the time of his death. We have read the evidence. In our view it was sufficient to warrant the court in submitting-the question to the jury and overruling the motion for a new-trial so far as that point is concerned.
3. The court charged the jury, in effect, that the plaintiff was-not limited in his right of recovery to damages sustained by him by reason of loss of services of his son from the time of his death to the day of his majority, but that he might “recover for pecuniary benefits reasonably to be expected to be received from the deceased after his majority.” We think there was no error in so charging. Our statutes (Revised Codes) relating to the right of recovery for death by wrongful act read as follows:
“Sec. .6485. A father, or in case of his death, or desertion of his family, the mother may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person who is responsible for his conduct, also against such other person.
“Sec. 6486. When the death of one person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages, against the person causing the death, or if such person be employed by another person who is responsible for his conduct,, then also against such other person. In every action under this- and the preceding section such damages may be given as under all the circumstances of the case may be just.”
It will be noted that section 6485 relates to the injury or death of a minor child, while section 6486 refers to the death of a person not a minor, and the latter section expressly provides that in both cases such damages may be given as under all the
The case of Dean v. Oregon R. & N. Co., 38 Wash. 565, 80 Pac. 842, is relied on by the appellant. That ease, however, is not, in its facts, similar to the instant one. The court said: “But it appearing that he [the deceased boy, eighteen years old] had abandoned the home of his parents, and had sent them absolutely nothing since said abandonment, we do not think it a fair presumption to be indulged that his conduct for the few years preceding his death would all be changed, and that he would soon be found returning home, or contributing his wages to his parents. This was a matter requiring proof.” We do not understand from this decision that the supreme court of Washington decided the question we are considering. It was contended by the defendant that the plaintiff had “shown no damages entitling him to any recovery.”
In the case of Agricultural & M. Assn. v. State, Use of Carty, 71 Md. 86, 17 Am. St. Rep. 507, 18 Atl. 37, also cited by appellant’s counsel, the court of appeals of Maryland held, as we understand the decision, that the evidence was insufficient to warrant the conclusion that the minor son would have been of any pecuniary benefit to his father after he attained his majority.
The New York court of appeals, in Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. E. 108, said: “The jury were not bound, in estimating the compensation to be made for the death
The supreme court of Wisconsin, in Thompson v. Johnston Bros. Co., 86 Wis. 576, 57 N. W. 298, said: “There can be no doubt that in such a case the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of the life, even, beyond his majority. That depended upon her pecuniary circumstances, and the evidence admitted related directly to such circumstances. ’ ’
The United States circuit court of appeals, fifth circuit, in the case of Texas & P. Ry. Co. v. Wilder, 92 Fed. 953, 35 C. C. A. 105, said: “There is no merit in the specifications of error, which are founded upon the false assumption that the damages in the cause were restricted to the benefits which the plaintiff might have derived from the services of their son up to the time of his majority. We are clearly of opinion that the damages should not have been so restricted, and that in this cause it was proper for the trial judge to charge the jury that, in assessing the damages, they had a right to consider what reasonable expectations the plaintiffs had of pecuniary benefits to be received from their son after he should have reached the age of majority. * '* * In some jurisdictions the parent has, by statute, an action, against the child for support. But, apart from any such statute, there certainly is an indisputable natural obligation on
The supreme court of Arkansas, in Railway Co. v. Davis, 55 Ark. 462, 18 S. W. 628, said: “But the question in every ease under the -statute is: Does the evidence show a reasonable expectation of pecuniary advantage to the next of kin, whether it be a parent, sister, or another who stands in that relation ? Recovery may be had in either case as readily upon a reasonable expectation of a gratuity as of the enjoyment of a legal right. If the loss of the decedent has deprived the next of kin of a legal right to services or support, that fact does not militate against his right to recover also for a gratuitous pecuniary- advantage, which the proof shows he had the reasonable expectation of receiving if the life of the deceased had continued.” To the same effect are the following cases: Pierce v. Conners, 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. 721; Gulf etc. Ry. Co. v. Compton, 75 Tex. 667, 13 S. W. 667; Boyden v. Fitchburg R. R. Co., 70 Vt. 125, 39 Atl. 771; Draper v. Tucker, 69 Neb. 434, 95 N. W. 1026; Atchison etc. Ry. Co. v. Cross, 58 Kan. 424, 49 Pac. 599; Flaherty v. New York Cent. R. R. Co., 19 R. I. 604, 36 Atl. 1132; Illinois Central R. R. Co. v. Reardon, 157 Ill. 372, 41 N. E. 871; Beaman v. Martha Washington Min. Co., 23 Utah, 139, 63 Pac. 631.
Testimony was admitted tending to show that plaintiff had a. life expectancy of twenty-four years, and that a boy of eighteen had an expectancy of forty-three years. Deceased was earning ■about $2.70 per day at the time of his death. Mr. McCarthy, a life insurance agent, testified that the cost of an annuity of $700 per year would be ‘ ‘ somewhere around $15,000 or $16,000. ’ ’ Mr. A. L. Stone testified that the deceased could have maintained himself on oné-half of $2.70 per day. The court instructed the jury as follows:
‘ ‘No. 4. You are instructed that, if you find from the evidence that the plaintiff is entitled to recover for the pecuniary loss and damages sustained by reason of the death of his son, then you may award to the plaintiff such damages as under all the circumstances of the ease may be just; and, in fixing the amount of such damages, you may in the exercise of a sound discretion fix the same at such sum as would be required to purchase an annuity equal to the amount that such son might reasonably be expected to contribute yearly to the plaintiff during the period of expectancy of the plaintiff’s life; but you cannot find such sum to be more than $6,000.
“No. 5. In computing the expectancy of life, and in arriving at an amount sufficient to purchase an annuity, you may be guided by the evidence submitted respecting standard mortality and annuity tables. You should, however, bear in mind the uncertainty of life, and the possibility that the deceased might not have contributed to the plaintiff, if he had lived.
The criticism offered by the appellant to the action of the court on this branch of the ease is thus expressed in the brief of its counsel: “There is no proof in this ease showing any .promise to do anything for the father on the part of the deceased, or any evidence that he ever did. In this connection, we desire to urge that the court erred in giving instruction No. 5, because it enabled the jury to go into the wildest speculation, for by said instruction the jury were entitled to consider the possibility of whether or not the deceased might or might not have contributed to the plaintiff if he had lived.” We believe that the question thus raised by counsel is fully covered by what has already been said on another branch of the ease, and that the authorities there cited fully sustain our decision that, in cases like the one at bar, the jury should be allowed to determine the question of damages.
Again, it is urged that the court erred in allowing the witness McCarthy to testify that the expectancy of life of a male person eighteen years of age was forty-three years. As we understand the position of counsel, this specification of error is also based upon the contention that no recovery could be had for expected pecuniary assistance or benefits after the age of majority was reached, and this question has already been considered.
We find no error in the record. The judgment and order appealed from are affirmed.
Affirmed.