89 Neb. 733 | Neb. | 1911
The defendant, W. T. Graham, was by the county court of Douglas county appointed administrator of the estate of William Griffin, deceased. The deceased was killed in an accident on the railroad, and under the direction of the county court the administrator settled with the company and received $3,750 in full payment for the damages caused by the death of his intestate. As administrator he filed his petition in the county court showing that the deceased left no children or descendant, but left a widow, the plaintiff, Margaret Griffin, and asked the court for an order directing the distribution of the money in his hands. The defendant, Jane Bailey, who is the mother of the deceased, appeared in the county court and asked for one-half of the money in the hands of the administrator as next of kin. The court ordered an equal division between the widow and the mother of the deceased, after payment of the expenses of administration.The widow appealed to the district court, and upon hearing in that court the order of the county court was sustained. Prom the judgment of the district court sustaining the order of the county court she has appealed to this court.
Sections 1, 2, ch. 21, Comp. St. 1909, are as follows: “That whenever the death of a person shall be caused by the 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 person who, or company or 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
There appears to be no dispute in regard to the facts. The only question presented is as to the proper distribution of the funds. There is no proof in the record that Mrs. Bailey, the mother of the deceased, was in any way dependent upon her son for support, or that he had ever furnished her any pecuniary aid. The administrator offered to prove that Mrs. Griffin, the widow of the deceased, “was the only person who was dependent upon said decedent for support, or who received any support from him during his lifetime.” This evidence was objected to, and the objection sustained and the evidence excluded. The appellant concedes that if the deceased had been furnishing his mother with support and maintenance, or under the conditions of the family was required to do so, she would have had a pecuniary interest in his life and wrould have been entitled to her share in the funds in question; but it is contended that it was not the intention of the legislature that the mother is entitled to one-half of the fund merely because she is the next of kin. Such a- construction, it is urged, would defeat the beneficent purpose of the statute. “It would enable the next of kin, wdiether lineal or collateral, whatever
It is undoubtedly true that the construction of the, statute complained of might in some cases result in injustice. Where the widow is left without any means of support, and the next of kin are in more fortunate circumstances and had no need of any pecuniary assistance from the deceased in his lifetime and have ample means for their own support and maintenance, the purpose of the statute, as manifested in the act itself, would seem to indicate a different basis of distribution. The measure of damages is prescribed in the statute in these words: “In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the .widow or widower and next of kin of such deceased person.” The widow in such case may suffer much more pecuniary damage than any or all of the next of kin, and this damage is the basis of the recovery, and, if practicable, it would seem reasonable that the money realized should also be distributed on this basis. It does not, however, necessarily follow that the mother has not suffered any pecuniary injury because she has not heretofore re
The appellee insists that the court erred in its allowance to the administrator. The case is presented here upon a printed abstract prepared under the recent act of the legislature. It does not appear from this abstract that there was any cross-appeal. The appellee therefore is not in position to question this ruling of the district court.
The judgment of the district court is
Affirmed.