82 Neb. 17 | Neb. | 1908
In a trial to a jury the plaintiff, as administrator of the estate of Mary Maud Greenwood, deceased, recovered a verdict and judgment, from which the defendant appeals. In his petition plaintiff alleged that Ms decedent suffered death through the malpractice of the defendant, a physician and surgeon. At the beginning of the trial the defendant demurred to the petition ore tenus. His demurrer was overruled. It is contended that the petition is fatally defective because it does not allege that the deceased left surviving her any person who sustained a pecuniary loss on account of her death. In this respect the petition alleged: “The said Mary Maud Greenwood was 20 years of age and upwards at the date of her decease, and left surviving her next of kin, that is to say, her father, John B. Greenwood, the plaintiff, her mother, Lucy J. Greenwood, her brothers, Willie F. Greenwood, aged 18 years, Emory R. Greenwood, aged 16 years, Roy Greenwood, aged 7 years, and a sister, Bessie May Green
The rule is that facts must be pleaded from which it may be inferred that the next of kin have sustained a pecuniary loss by reason of the wrongful act of the defendant. If the plaintiff discloses that the deceased was one upon whom the law imposed the duty of maintaining (he next of kin, it is for this reason a sufficient allegation of fact from which a pecuniary loss may be inferred. But, if the deceased was one upon whom the law does not impose the duty of maintaining her next of kin, then the fact of their relationship alone is insufficient to show that the next of-kin have sustained recoverable damages. Anci i.n those, cases such facts as exist must be pleaded to show that the next of kin have sustained such damages. In the case at bar the deceased was an unmarried aduli. She left surviving her both parents, a sister and brothers. Is the allegation of the petition that the next of kin of decedent were “dependent upon her for support, all of whom have suffered pecuniary damages by the death of plaintiff’s intestate,” a sufficient allegation of pecuniary loss sustained by her father? It is admitted that the father is the only one who is entitled to participate in the amount recoverable. We think the allegation is sufficient. “That her next of kin were dependent upon her for support” is the statement of a fact showing a pecuniary interest in her life. This allegation differs materially from the allegations in. the petitions considered in the cases relied upon by the defendant. In those cases no allegation of fact appeared from which a pecuniary loss to the next of kin could be inferred; but the plaintiff in each case depended upon the alleged facts of the unlawful
Another objection to the petition is that it fails to state any fact or circumstance showing that the deceased, if death had not ensued, could have maintained an action against the defendant. This objection cannot be sustained. The petition sufficiently alleges that the defendant as decedent’s physician carelessly, negligently and unxkillfully treated the plaintiff, and that he wrongfully and carelessly failed to make an examination of the deceased such as a physician of ordinary care would have done, and diagnosed the disease as one other than appendicitis, with which the deceased was, in fact, suffering. Had the deceased survived the defendant’s treatment, under the allegations herein it is apparent that she could have maintained an action in damages for the wrongs alleged.
The defendant assails a part of instruction numbered 9, which is as follows: “And if you find for plaintiff the amount which he should recover in this action, if any, you should consider the situation of deceased as disclosed by the evidence, her annual earnings, her habits, her health, and her estate, if any, the profits of her labor, which she would have earned had she lived for the support of those entitled to recover, and the probability or the reasonable expectation of the life of deceased at the time of her death; and, in determining this, you may
We recommend that the judgment of the district court be reversed, and the cause remanded for ' further proceedings.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.