296 N.W. 749 | Neb. | 1941
This cause originated in the county court of Hall county from proceedings in the estate of LeRoy Lucht, deceased. Johanna Stolle, appellee herein and mother of said deceased, as administratrix of said estate, filed her report and petition for final settlement and order of distribution, and Emil Lucht, appellant herein and father of said deceased, filed objections thereto. From an order of distribution made by the county court, both of said parties appealed to the district court. From the decree of the district court said Emil Lucht appeals.
The record discloses that Johanna Stolle and Emil Lucht were married to each other on May 15, 1918. They separated in January, 1920. To this union the deceased, LeRoy Lucht, was born on April 11, 1919. Johanna Stolle secured a divorce from Emil Lucht on May 18, 1920. By the decree granting divorce the custody of LeRoy Lucht was awarded
Section 30-809, Comp. St. 1929, provides in effect that, if the death of a person is caused by the wrongful act, neglect or default of another, and if such act, neglect or default is such as would have entitled the injured person to maintain an action for damages on account thereof, then the person who would have been liable in damages, if death had
“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered therein shall be for the exclusive benefit of the widow or widower and next of kin of such deceased person, and shall be distributed to such widow, widower and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate, and 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: Provided, every such action shall be commenced within two years after the death of such person.”
By chapter 92, Laws 1919, this section was amended to read as follows:
“Every such action shall be commenced within two years after the death of such person. It shall be brought by and in the name of his personal representative, for the exclusive benefit of the widow or widower and next of kin. The verdict or judgment should be for the amount of damages which the persons in whose behalf the action is brought have sustained, and the avails thereof shall be paid to and distributed among such persons in the same proportions as the personal property of an intestate under the inheritance laws. A personal representative shall not compromise or settle a claim for damages hereunder until the court by which he was appointed shall first have consented to and approved of the terms thereof.”
By chapter 75, Laws 1937, said section, as amended by said chapter 92, Laws 1919, was repealed and reenacted, word for word, and the following provision added thereto:
“And the amount so received in settlement or recovered by judgment shall be reported to and paid into said court*143 for distribution subject to the order of such court to the persons entitled thereto: Provided, said amount shall not be subject to any claim against the estate of said decedent.”
The action in which appellee recovered said sum as administratrix was begun in 1933.
Some of the decisions of this court that relate to said statutes are of aid in the solution of the questions involved. Both before and after the amendment of 1919 it has been repeatedly held that the only recoverable loss is a pecuniary loss to the widow, widower, or next of kin. City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50; Orgall v. Chicago, B. & Q. R. Co., 46 Neb. 4, 64 N. W. 450; Greenwood v. King, 82 Neb. 17, 116 N. W. 1128; Ensor v. Compton, 110 Neb. 522, 194 N. W. 458; Dow v. Legg, 120 Neb. 271, 231 N. W. 747. It has also been held that the statute requiring support of a pauper by his child does not, of itself, cause a parent to suffer a pecuniary loss by the death of his child. Spomer v. Allied Electric & Fixture Co., 120 Neb. 399, 232 N. W. 767. That the personal representative as plaintiff acts merely as a trustee, and that the amount recovered is no portion of the estate of the deceased has been held. Moore v. Omaha Warehouse Co., 106 Neb. 116, 182 N. W. 597; City of Friend v. Burleigh, supra. The appellant urges that the case of In re Estate of Griffin, 89 Neb. 733, 131 N. W. 1033, is decisive of the case at bar. The facts in that case were that the deceased left his widow and his mother surviving, but no children. The evidence did not show the mother to have suffered any pecuniary loss on account of the death of her son. Yet, it was held that the amount of the recovery had by the widow as administratrix must be divided between the widow and next of kin in the proportion that personal property of an intestate would be divided, which, in that case, was one-half to the widow, and one-half to the mother. The opinion of this court in that case was filed in June, 1911, prior to the 1919 amendment above quoted. The appellant’s brief sets forth a copy of the bill as originally introduced in the legislature in 1919, by which an amendment to the statute that is now section 30-810 was sought.
With the decisions above cited, the history of the 1919 amendment heretofore mentioned, the amendment of 1919 itself, and also the 1937 amendment above described in mind, what was the intended effect of the said amendment of 1919? If the purpose of this amendment was merely to add the provision empowering the personal representative to compromise or settle the claim with the approval of the court, passage of the bill as originally introduced would have accomplished such purpose. Amendments recommended by the judiciary committee in the senate changed the entire body of the act. Prior to the 1919 amendment,
Did the appellant suffer a pecuniary loss by the death of LeRoy Lueht? We are not unmindful of the various rights of a father in relation to his son, even though he may live from the son apart. Neither are we unmindful of the meaning of the phrase “pecuniary loss” as used in the holding heretofore made. It seems that the remote possibility of the appellant regaining the custody of his son, had he not died, or of the son being compelled to support the appellant in case appellant became a pauper, is too remote and uncertain to be the basis of recovery of damages. Spomer v. Allied Electric & Fixture Co., supra. It has been held that a father, under the circumstances outlined above, is not entitled to the wages or earnings of his child while a minor.
The appellant urges that he was named as one of the next of kin in the petition in the action in which appellee recovered as administratrix of her son’s estate, and that in the instructions to the jury in that action the jury were permitted to- include in their’ verdict any pecuniary loss suffered by appellant, and shown with reasonable certainty. We are not concerned with what errors may have been committed in the trial of that action. The finding of which of the surviving spouse and next of kin suffered a pecuniary loss by the death of the deceased, and the finding of the degree of kinship of the one or more suffering such loss, is left to the court, for determination subsequent to the recovery of the amount to be distributed, while the ratio of distribution is fixed by the statute, 14 A. L. R. 538, subhead III.
For reason' above given, the decree of the trial court is affirmed. Costs in this court taxed to the appellant.
Affirmed.