121 Ky. 526 | Ky. Ct. App. | 1905
Opinion by
Reversing.
J. E. Houchins was a postal clerk on a mail train running between Paducah and Louisville on the Illinois Central Railroad. On November 7, 1902, at 11 :- 36 a. m., the train on which Houchins was, collided
Williams, who had charge of the engine with which the train collided, had taken his engine off the side?
It is insisted that the court erred in refusing to remove the case to the Circuit Court of the United States, on the idea that the company can not be sued jointly with the servant whose negligence caused the injury where it was not independently at fault, that under the allegations of the petition for removal the railroad company had a right to remove the case, and that the Circuit Court of the United States must determine the questions arising on the allegations of the petition for removal. We can not accede to this view. The plaintiff’s petition stated a cause of action within the jurisdiction of the State court. The joint cause of action so stated by him in his petition was not removable to the federal court under the act of Congress. -That court had no jursdiction over the case, and any order it made in a case of which it had no jurisdiction was void. Consent can not confer jurisdiction, and if the railroad company had been beaten in that court it might at the end of the litigation have raised the question of jurisdiction. It was not contemplated by the act of Congress that every case, whether removable or not, should be subject to the control of the-federal courts. If the course urged in this case is to be approved, then every case to which a nonresident is a party, although liable jointly with the'others, may be removed to the federal court. The action was properly brought in the State court. That court admittedly had jurisdiction and it certainly can not be maintained that it should -have surrendered jurisdiction over the case and sent it to a court for trial which on the face of the papers was without jurisdiction to make any order in it.
Is this action, which confessedly lies in the State court under laws of the State, to be controlled by the federal court, and may that court, if of opinion that a joint action does not lie, take jurisdiction of the case? Such a rule would deprive the litigant of his right to try his case under the laws of the State, and would compel him to go into the merits of his case before a tribunal without jurisdiction to sit in it. If the State court makes a mistake, an appeal may be taken to this court; and if the railroad company feels aggrieved by the decision of this court it may in every case prosecute an appeal to the Supreme Court of the United States on the question. So it is not without remedy, and there is no possibility of its rights not being properly protected.
Houchins proved on the trial that he was 29 years of age at the time of the injury. He introduced on his behalf W. T. Morgan, who, over the objections of the defendants, was allowed to testify as follows:
“Q. According to the American Tables of Mortality, what is the probable expectation of the life of a man 29 years of age?
“A. This is a book of the Mutual Life Insurance Company of New York. Take a man at the age of 29, the probable expectancy of life for him would be 36.2 years; a man in good health and 29 years old, his expectation of life would be 36.2 years.”
“A. Yes, sir.”
“Q. This book is gotten out by the Mutual Life-Insurance Company of New York?”
“A. Yes, sir; that book was sent me this year.”
According to Dr. Wigglesworth’s Table, which has been adopted by this court, the expectancy of life of a man at 29 years old. is 30.66 years. The evidence-objected to showed that the expectancy of life at 29 years was. nearly 6 years longer. When the action is to recover for the death of a person injured, as the measure of recovery is the value of his capacity to earn money, standard tables, showing the ordinary expectancy of life, are held to be competent. Where, as in this case, there is proof tending to show that the plaintiffs capacity to earn money is unpaired or partially destroyed, the probable expectancy of life is equally competent; for the measure of recovery here is in part compensation for the impairment of his capacity to earn money. If, as is conceded, evidence of the ordinary expectation of life may be received where the capacity to earn money is-destroyed by death, it is hard to see why such evidence can not be equally received where the capacity to earn money is partially destroyed; for in either case the jury are, in making up their verdict, to be-governed by the capacity to earn money which has been destroyed, and whether this is a partial or total destruction is not material. (Greer v. L. & N. R. R. Co., 94 Ky., 169, 14 Ky. Law Rep., 876, 21 S. W., 649, 42 Am. St. Rep., 345.)
The Carlisle Mortality Tables are based upon actual observation in the towns of Northampton and Carlisle, England. The deaths were taken, not from selected lives, but from the population generally.
Such tables show only the probable continuance of life, and not the duration of ability to earn money. They show the probable duration of life of healthy persons who are insurable risks, and the court, when requested, should tell the jury What the table shows, and that it is to be considered by them, in connection with the other proof in the case, for what it may he worth, considering the plaintiff’s state of health and. circumstances, in determining the probable duration of his capacity to earn money. (3 Wigram on Evidence, sec. 1698; Gordon v. Tweedy, 49 Am. Rep., 813.)
The court allowed the plaintiff to prove by a witness that Williams, long after the accident, acknowledged to backing his engine out on the main track on the time of the train, saying he forgot the dead time the train had there. This was no part of the res gestae, and the admission by the servant was incompetent against the master. (C. & O. R. R. Co. v. Smith, 101 Ky., 111, 18 Ky. Law Rep., 1079, 39 S. W., 832.) The evidence was, however, competent against Williams, who was sued jointly with the railroad company; but, when it was admitted by the court without any admonition, the jury would understand it to be competent against all the defendants. In admitting the evidence the court should have cautioned the jury that it could only be considered against the defendant Williams, and not against the other defendant. (Cincinnati, &c., R. R. Co. v. Cook, 113 Ky. 161, 24 Ky. Law Rep., 110, 67 S. W., 383.) It often happens, in suits against two defendants, that evidence of admissions is competent against the one who
On the question of damages the court, after directing the jury to find compensatory damages, added these words to the instruction: “If the jury believe-from the evidence that the said collision was caused by the gross negligence of the defendant railroad company’s agents or servants in charge of the engine-with which passenger train collided on the occasion, in controversy, then and in that event the jury may, in addition to compensatory damages, if any, award the plaintiff punitive damages against said defendant Illinois Central Railroad Company, not exceeding, however, in the aggregate $15,000, the amount, claimed. ’ ’
As to whether there was enough in the evidence to-warrant the awarding of punitive damages the court-is equally divided. But when an instruction is given as to punitive damages the court should clearly tell' the jury that the giving of punitive damages is a matter of discretion, and in this case, the .court should tell the jury that if they believe, from the evidence,
It is earnestly insisted that the verdict of the jury is palpably excessive, the result of passion and prejudice. In view of the uncertainty of the evidence as to the extent of the plaintiff’s injuries, or as to what his condition will permanently be, we are of opinion that the verdict is excessive, and that, on the whole case, a new.trial should be awarded.
Judgment reversed, and cause remanded, for further proceedings consistent herewith.