Kelly v. Lemhi Irrigation & Orchard Co.
168 P. 1076
Idaho
1917
Check Treatment
McCARTHY, District Judge.

This is аn action brought by Harry Kelly, as administrator of the estate of Ira L. Davis, deceased, against the Lemhi Irrigation and Orchard Company. It is charged in the complaint that the defendant wrongfully caused the death of the deceased while in its employ by providing the crew, of which he was a member, with a hay derrick which was unsafe and defective in certain particulars expressly set forth; that by reason of such defects said derrick fell and inflicted injuriеs upon deceased from which he died. The evidence shows that four married sisters and two older brothers are the sole heirs of the deceased. There is no evidence that any of said brothers or sisters were in any wаy dependent, financially, upon the deceased or had ever received any financial aid from him, nor does the evidence show any likelihood that they would have received any such aid in the future. In fact, the сomplaint does not contain any allegation that the heirs ever had received or ever expected to receive financial aid. The complaint alleges that the heirs were entitled to the soсiety, companionship, help and advice of their brother *783and that by reason of the negligence of the defendant they have been deprived of his society, companionship, help and advice. The jury found a verdict for $2,500. Under the evidence the verdict must have been based upon the loss to the heirs of his companionship and society, as there was no evidence of any other loss.

The case is in this court on apрeal from an order of the district court denying a motion for a new trial. The principal specifications of error are: The giving of certain instructions by the court; the refusal to give certain instructions requested by aрpellant; that excessive damages have been given under influence of passion and prejudice, as no evidence appears showing that the collateral heirs, for whose benefit the suit was brought, suffered аny damages whatsoever; and that the evidence is insufficient to show actionable negligence on the part of appellant.

Appellant specifies as error instruction numbered 21, as follows: “It is not necessary for the plaintiff to prove all the acts of negligence charged against the defendant in the ‍‌​‌‌‌‌​‌‌‌​​​​​​​​​​‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌​​‌‌​‌​‌​‌‍complaint. If he (the plaintiff) proves any one of the allegations of negligence, and the plaintiff’s intestate, Ira L. Davis, deceased, was without fault, it is sufficient.”

In speaking of “the acts of negligence,” the court clearly refers to the different defects in the hay derrick which are expressly set forth in the complaint. If this instruction stood alone it might be prejudicial, but the prejudicial effect of it is removed when it is read in connection with other instructions which explain just what the plaintiff must show in order to prove actionable negligence on the defendant’s part.

“All instructions given in a case must be read and considered together and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge and was not misled by an isolated portion, which, considered alone, does not fully and clearly state the law applicable to the facts in the *784case.” (State v. Curtis, 30 Ida. 537, 165 Pac. 999, and cases there cited.)

Appellant claims there was not sufficient evidence to show negligence on its part and that the evidence shows the fall of the derrick was caused by the negligence of a fellow-servant of the deceased who was operating it. The rule is well established that the master is liable if an injury to a servant results from the master’s failure to provide the servant with reasonably safe implements and appliances, even though there is also negligence of a fellow-servant, if the two concur as a proximate cause of the injury. (4 Thompson on Negligence, sec. 4858; Keast v. Santa Ysabel Gold Min. Co., 136 Cal. 256, 68 Pac. 771; Pullman Palace Car Co. v. Loach, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215.)

We conclude that the evidence showing negligence on the part of the master and negligence on the part of the' fellow-servant ‍‌​‌‌‌‌​‌‌‌​​​​​​​​​​‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌​​‌‌​‌​‌​‌‍was properly submitted to the jury and that the evidence is sufficient to support the verdict under the rule above stated.

Appellant specifies as error that the damages are excessive, in that the evidence does not show that the collateral heirs suffered any damages, and that the court should have instructed the jury, as requested by appellant, that no damages could be rеcovered for the loss of the comfort and protection of the deceased. The statute under which the action is brought (sec. 4100, Eev. Codes), is as follows:

“When the-death of a person, not being a minor, is caused by thе 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 pеrson 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. ’ ’

In England and in some of the states the courts have held that under a statute creating liability for wrongfully' causing death, recovery- is limited to damages for a pecuniary injury, which we understand to mean an injury directly *785causing financial loss. In almost all of the states where this has been held the recovery is limited expressly by statute to pecuniary injury. No such express limitation is made by our statute; therefore these decisions are not in point. In ‍‌​‌‌‌‌​‌‌‌​​​​​​​​​​‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌​​‌‌​‌​‌​‌‍England and in some of the states such is the holding, even though the statute does not expressly limit recovery to pecuniary injury. In California, under a statute like ours, the court holds that recovery is limited to pecuniary injury. (Beeson v. Green Mt. Gold Min. Co., 57 Cal. 20; Burk v. Arcata & Mad River R. R. Co., 125 Cal. 364, 73 Am. St. 52, 57 Pac. 1065.)

In the former case, however, thе court holds that, where damages on account of the death of a husband are sought for the benefit of his wife, the loss of companionship or society may be considered as an element of pecuniary damages. This court has held, in case of a parent, recovery may be had for the loss of the society and companionship of a child. (Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91.) As to whether this is to be considered a pecuniary injury, as said by the California сourt, this court did not expressly hold. Taking the words as meaning an injury which directly causes a financial loss, we do not see how it can be said that such an injury is a pecuniary injury. It is however, a substantial, serious and material injury and should be сompensated in damages, as held by this court and the California court. In case of Burk v. Arcata etc. R. R. Co., supra, the California court discriminated in this respect between an heir who is a relation in the direct line and a collateral heir, holding, in еffect, that the collateral heir cannot recover for loss of companionship or society, but must show some direct financial loss of a different sort; in other words, must show that he’ had a reasonable expеctancy of deriving financial aid from the deceased, if he had lived, or of inheritance. This decision of the California court was rendered after the legislature of this state passed a statute similar to the California statute, and therefore it cannot be said that the legislature of this state adopted the construction placed upon the statute by the Cali*786forma court. We are unable to follow the reasoning of the Califоrnia decision. If the loss of the society and companionship be a substantial loss which should be compensated, this should apply to any heir, if it can be shown that he has suffered such loss. The statute itself makes no discriminatiоn in this respect. Suppose a brother and sister are left orphans at an early age, with ample means, but with no other near relatives. If the brother be killed after they have grown up together and he has borne towаrd her the part of father as well as brother, then the loss of his society and companionship is a substantial and material loss to her, almost to the same extent as if he had been her father instead of her brother. In the рresent case the evidence shows that Mrs. Kelly, a sister of the deceased, had brought him up, really taking the place of his mother. A rule which bars collateral heirs, in all cases, from recovering damages for loss оf society and companionship does not strike us as just or sensible, and we find no basis for such a ‍‌​‌‌‌‌​‌‌‌​​​​​​​​​​‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌​​‌‌​‌​‌​‌‍rule in the statute. In the words of the statute, such damages should be allowed as under all the circumstances of the case may be just. Bach case must stand on its particular facts. Under the usual conditions of life it is not probable that, in the ordinary ease, a collateral heir can show any substantial damages because of loss of society or companionship. However, if in any ease a collateral heir can prove there have been such close companionship and relations between himself and the deceased that he has suffеred a substantial loss from the termination of that companionship, then the jury may be allowed to consider that fact as an element of damages, in a similar way, although perhaps not generally to the same degrеe, as it would be considered if the relationship had been in the direct line instead of collateral. Of course no such companionship is implied from the mere relationship, it must be proved to have existed. If such fact be proved, then it may be considered as an element of damages in all cases which come under the statute.

Applying the above rule to the evidence in this case, we conclude there is sufficient evidеnce of the close relations and *787companionship between the deceased and his sister, Mrs. Kelly, to warrant the jury in considering the loss of that companionship as a ground of substantial damage. We conclude there is not sufficient evidence of close relations and companionship between the deceased and the other heirs to warrant the jury in considering the loss of that companionship as a ground of substantiаl damage; yet the jury very likely considered the loss of companionship suffered by the other heirs, as well as the loss suffered by Mrs. Kelly, in arriving at the verdict of $2,500. We conclude that the amount of the judgment should be reduced to $1,500.

We have examined the other specifications of error relied on by appellant and conclude that they are not well taken.

The cause is remanded with direction to the district court to grant ‍‌​‌‌‌‌​‌‌‌​​​​​​​​​​‌‌‌​​​‌​‌‌‌‌​‌‌‌‌‌​​‌‌​‌​‌​‌‍a new trial unless, within thirty days аfter the filing of the remittitur, the respondent shall file in said court his written consent that the judgment be reduced to $1,500, together with plaintiff’s costs incurred in the district court. If such consent is given, the judgment will be modified accordingly, as of the date of its original entry, and, together with the order denying the motion for a new trial, will stand affirmed. Costs upon appeal are awarded to appellant.

Morgan and Rice, JJ., concur.

Petition for rehearing denied.