160 Iowa 524 | Iowa | 1913
The decedent was an unmarried adult twenty-five years of age. He left surviving him a father and mother fifty-three and fifty-four years of age, respectively. He was
The Liability Act referred to creates a right of action against the employer for the death of any employee, resulting from the employer’s negligence, in favor of the administrator but for the benefit of certain classes of relatives as follows: “(1) For the benefit of the surviving widow or husband or children of such employee; (2) and if none then of such employee’s parents; (3) and if none then of the net kin dependent upon such employee.”' The beneficiaries of this suit are those of the second class above stated. It is urged by the appellant that the petition made no averment that the beneficiaries named suffered any pecuniary loss by reason of their son’s death. And it is urged, further, that there was no evidence of any such pecuniary loss or of any facts from which such pecuniary loss could, be found. Inasmuch as this act impliedly provides that suit may be brought thereunder in state courts as well as federal courts, it is important that there be uniformity of judicial opinion in construing its provisions. Manifestly, the final word will rest with the Supreme Court of the United States as to matters of substantive right thereunder. As to pleading and procedure, necessarily the courts of each state must pursue their own statutory methods.
Manifestly, also, the measure of damage in favor of the first class will be essentially different from that in favor of
Apparent exceptions to this rule are found in New York and Illinois. But the decisions in those states are based upon the particular form of their statutes. Each statute provides that the jury may give “such damages as they shall deem a fair and just compensation:” Under each statute, also, the beneficiaries are confined to surviving husband or wife and next of kin, and the damages recovered are distributed in accordance with the statutes of descent.
This question of loss of prospective gifts to the parents will ordinarily involve an inquiry into the means and earning capacity of the decedent on the one hand, and the means and earning capacity of the parents on the other. The extent of previous contributions for support would clearly be a proper consideration. It is not legally necessary to show that the parents were dependent upon the deceased child as in cases of ‘ ‘ dependent next of kin. ’ ’ But such fact would undoubtedly be admissible in behalf of the parents if it were shown that such dependence was recognized by the deceased in the form of contributions. In the nature of the case, evidence
Turning to the evidence, the question of the amount of the pecuniary loss sustained by these parents seems to have been either overlooked or left to mere presumption. The surviving father testified as a witness, but did not touch upon this subject at all. The mother, testifying, touched the subject as follows:
Roy was not the oldest in the family. I have a married daughter. I have one other boy. My husband is a common laborer. My son contributed to the family expenses when he was working-. Cross-examination: We have been living in Iowa Falls about four years. My husband used to work for the Rock Island Road. He ceased to work for the Rock Island about five years ago. About three years before Roy’s death. He was formerly a conductor. I lived in Minnesota while he was conductor. Q. You had been living at Iowa Falls about two years at the time of Roy’s death? A. Yes, sir. Q. He had been working for the Rock Island all those two years? A. The boy, I understand you? Q. Yes, the boy Roy? A. Yes, sir. He was working on that division between Estherville and Cedar Rapids and made his home with me and my hus*532 band. He boarded and roomed there when he was there and paid me for his board and room. Q. And in that way contributed to the family ? A. Yes, sir; and in other ways, too.
This is the entire testimony in the record on that question. It fails to furnish any sufficient data upon which the jury could properly award a verdict of $5,000.
. The question here involved has received recent consideration by the federal Circuit Court of Appeal for this circuit in the Case of Garrett v. L. & N. Ry. Co., 197 Fed. 715 (117 C. C. A. 109). The following quotation from such opinion will sérve to indicate the view of that court on such question:
As to the necessity for amendment, it is to be observed, as set out in the statement, that plaintiff simply sues for the ■benefit of decedent’s parents in the first and second counts, and as administrator in the third count. He does not allege anywhere in the declaration that the parents of the deceased suffered any pecuniary loss or injury through his death. The theory seems to have been that it was necessary to state only the facts sufficient (1) to give the court jurisdiction; (2) to show the .employment of the deceased and the negligence resulting in his death; (3) the names of the particular beneficiaries for whose benefit the suit is brought, and also the amount of damages sued for. It may be conceded for present purposes that if a widow and children had survived, and the action were maintained for their benefit, the law*537 would presume substantial damages, and so dispense with the necessity of specific averment in that behalf. Dukeman v. C. C. C. & St. L. R. Co., 237 Ill. 109 (86 N. E. 712). In some jurisdictions even the relationship or connection of the beneficiaries is nut deemed important in this respect. Pennsylvania Co. v. Coyer, Adm’r, 163 Ind. 631 (72 N. E. 875) ; Knife & Shear. Co. v. Hathaway, 17 O. C. D. 750, 751, and cases there cited. But the decedent in this case was twenty-four years of age and unmarried at the time of his death, and we are convinced that the better practice is, at least as to such beneficiaries as are involved here, to require the nature of the damages claimed to have been suffered in consequence of the death to be averred. This results from the conclusion that the action which accrued to the deceased prior to his death did not survive. "We have already pointed out that the third class, the ‘next of kin,’ provided for in the act, is especially limited to such as were ‘dependent upon such employe.’ This provision at once furnishes the token for identifying the beneficiaries and prescribes the condition of recovery. Is it to be said that such identification and condition need not be averred? Since it is not uncommon experience that a son past his legal majority, as well as a minor son, may be an expense to his parents, it is more consonant with the reason disclosed by the act in respect of next of kin to hold that averment of pecuniary loss or injury is likewise necessary in regard tp parents, although dependence, in the sense in which the term is used in the statute wdth reference to next of kin, is not essential to a recovery for the benefit of parents.
Other cases in substantial accord with the foregoing are as follows: Railway v. Duke (C. C. A.) 192 Fed. 306; Cain v. Railway Co. (C. C.) 199 Fed. 211; Youngquist v. Street Railway Co., 102 Minn. 501 (114 N. W. 259); Colorado Co. v. Lamb, 6 Colo. App. 255 (40 Pac. 251); Gonzales v. Railway Co. (Tex. Civ. App.) 107 S. W. 897; Van Brunt v. Railway Co., 78 Mich. 530 (44 N. W. 321); Haug v. Great Northern Ry. Co., 8 N. D. 23 (77 N. W. 97, 42 L. R. A. 644, 73 Am. Rep. 727); Chicago, Ill. v. Scholten, 75 Ill. 468; Chicago, B. & Q. Ry. Co. v. Van Buskirk, 58 Neb. 252 (78 N. W. 514) ; Chicago, B. & Q. Ry. Co. v Bond, 58 Neb. 385 (78 N. W. 710);
In the case before us the most that can be said for the evidence is that it showed the mere fact that contributions had been made to the parents by the decedent to some amount in his lifetime. There is not the slightest disclosure as to the extent of such contributions. Without any disclosure on that question, how could a jury form any judgment as to the amount which might have been reasonably expected in the future? If this evidence could be deemed sufficient to sustain a verdict for $5,000, then it were better for the plaintiff to omit pertinent testimony than to produce it. It is true that no hard or fast rule can be laid down for the measurement of damages. When all is shown that can be shown on behalf of the beneficiaries, much will necessarily be left to fair inference and estimate. There is no escape from the conclusion, however, that the verdict in this case was purely arbitrary as to amount. Resting solely upon the evidence which we have quoted herein, it was clearly excessive and the motion for a new trial ought to have been sustained on that ground.
As an addendum to the foregoing division of the opinion, we desire to say that since it was written publication has occurred of the opinions of the United States Supreme Court in Mich. Centr. Ry. Co. v. Vreeland, 227 U. S. 59 (33 Sup. Ct. 192, 57 L. Ed. -); American R. Co. v. Didricksen, 227 U. S. 145 (33 Sup. Ct. 224, 57 L. Ed.-); Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173 (33 Sup. Ct. 426, 57 L. Ed. -). These cases support our construction of the act in question.
Other minor errors are specified, but they are of a