121 Neb. 322 | Neb. | 1931
This is an action brought by the administrator of the estate of Charles Killion, deceased, under sections 30-809 and 30-810, Comp. St. 1929, to recover damages for the death of the deceased caused by the negligence of the defendant in the operation of his automobile, resulting in a collision. This action was prosecuted for the benefit of the father and mother of the deceased. From a verdict in favor of the administrator, the defendant appeals. .
The appellant claims that the judgment should be reversed because the verdict was what is commonly known as a quotient verdict. A quotient verdict is one where the jury for the purpose of arriving at a verdict agree that each should write on his ballot a sum representing his judgment; that the aggregate should be divided by twelve; that they will be bound by the result and the quotient shall be the verdict. It is almost universally held that, if the jury arrive at their verdict in such a manner, it will be set aside. The vice in such a verdict is that it does not represent the deliberate judgment of the jurors and that it is subject to manipulation and partakes of the nature of a lottery. Such an agreement would enable one juror by voting for a very large or a very small sum to produce an average for an amount which would be unreasonable and at variance with the judgment of the other jurors. Such a verdict has been condemned.in numerous cases. Burke v. Magee, 27 Neb. 156; Sylvester v. Town of Casey, 110 Ia. 256; Haight v. Hoyt, 50 Conn. 583; George’s Restaurant v. Dukes, 216 Ala. 239; Anderson v. Kirby, 105 Kan. 596; and numerous other cases.
Misconduct of juror is another ground urged for reversal. It is alleged that on his voir dire examination he testified falsely that he did not have a case pending for trial in the district court for Wayne county and that one of the plaintiff’s attorneys was not his attorney in any
It is also true that the right to challenge a juror for cause may be waived or lost where there is a lack of diligence. Coil v. State, 62 Neb. 15. When it is called to the attention of defendant’s attorney before the jury are impaneled and sworn that the relationship of attorney and client existed between the plaintiff’s attorney and some jurors, it was lack of diligence upon his part not to inquire further into the matter.
Complaint is made of the following instruction to the jury by the court: “On the other hand, where contributory negligence is pleaded as a defense as it is in this
Another ground which the appellant urges for a reversal is that he may offer newly discovered evidence. As a general rule a motion for new trial is addressed to the sound discretion of the trial court. A new trial will not be granted upon the ground of newly discovered evidence, where such evidence is merely cumulative or impeaching or not of such controlling force as would probably change the result of the trial. Parkins v. Missouri P. R. Co., 79 Neb. 788; Blaha v. Chicago & N. W. R. Co., 119 Neb. 611; Simonsen v. Thorin, 120 Neb. 684; Omaha, N. & B. H. R. Co. v. O’Donnell, 24 Neb. 753; Riley v. Missouri P. R. Co., 69 Neb. 82. The testimony' offered is in its nature impeaching and cumulative and not such as would probably change the result.
The plaintiff seeks to recover the amount expended for the funeral expenses of the deceased. Recovery of damages is under the statutes. Comp. St. 1929, secs. 30-809,
The view of these cases is expressed by the language of Consolidated Traction Co. v. Hone, 59 N. J. Law, 275, reversed on rehearing, 60 N. J. Law, 444: “The funeral expenses being part of the pecuniary damages resulting from the death of the son, and which had been paid by the father, can be recovered in the action by the father as the administrator under the statute.” The theory upon which recovery is allowed in cases of this nature is that those who have suffered a pecuniary loss on account of the wrongful death of the deceased may recover for the
Sedgwick, in his work on Damages, sec. 573, explains that the compensation is for death and not injuries to deceased. This reasoning, he says, leads to the conclusion that medical and funeral expenses are not recoverable. However, he adds, in this country generally funeral expenses of deceased may be recovered where any of those for whose benefit the action is brought are legally bound to pay.
Tiffany, in his work on Death by Wrongful Act, sec. 157, states the rule as follows: “In the United States, however, funeral expenses are generally held to be a legitimate element of damages, at least when paid by one of the beneficiaries who was under obligation to pay them.” Such claim for damages is not an asset to an estate. City of Friend v. Burleigh, 53 Neb. 674. To confine the damage, as some courts have, to the loss occasioned by the decedent “not being alive” is in our judgment to construe the statute too narrowly. Funeral expenses are literally caused by the death. It is the duty of parents to bury their deceased minor children.
In Marshall v. Miller Bros., 112 Kan. 706, it was held that, under, the statute authorizing a recovery for the
Some of the cases which do not allow funeral expenses as a part of the measure of damage adopt the argument sometimes suggested that the defendant should not be held liable for funeral expenses, because eventually they would have to be paid anyway, and that the tort did not cause the expense, but merely accelerated the date of payment. This argument is not persuasive in a case where the action is brought for the benefit of the father and mother for the wrongful death of a minor child, for the reason that, in such a case, the presumption is that, in the absence of the wrongful and negligent act of the defendant, the parent would never be called upon to pay the funeral expenses. In line with the weight of authority, we adopt the rule that a parent can recover funeral expenses incurred for an unmarried minor child whose death was caused by defendant’s negligence.
In accordance with this opinion the judgment of the trial court is reversed and the cause remanded.
Reversed.