*1 HOLBROOK. NORFOLK & WESTERN RY. v. 625 Case. Statement the permissible discussion of classifications under and a not be pertinent. such an act would complained no in the of and judgment There is error accordingly it is
Affirmed. v. RAILWAY COMPANY NORFOLK & WESTERN HOLBROOK. OF APPEALS FOR THE TO THE CIRCUIT COURT ERROR CIRCUIT. FOURTH January 5, Argued 1, 2, 1914. Decided 1915. No. December 516. Liability instantaneous the Act, death is Employers’ where Under nothing more; loss beneficiaries can recover their proper is a circum- relationship and the deceased between them every instance, computing same. In stance for consideration in money values, the amount of however, be based on the award must pre- only upon peculiar facts a view of the can be ascertained sented. jury to take into proper it is for the trial court to instruct While instruction, guidance and advice care, attention,
consideration the may give which a father his children and include give proper to damages assessed, it is not value thereof in the by comparing rights speculation indefinite occasion for who supposed those of the the actual beneficiaries with kin. are mere next of strong appeal to the adequate to constitute the facts are Where anything which from charge should be free sympathy go outside permission evidence. jury can construe into parties protect duty court its relation to It is the prejudice or passion or arising impulse, unjust from from verdicts Fant, 116. rights. Wall. lawful Pleasants other violation of Rep. 687, Fed. reversed. of the Federal facts, which involve construction opinion. in the Act of are stated Liability Employers’ ccxxxv —40 vol. TERM,
(cid:127)626 Opinion of the Court. Mr. Theodore W. Rivinus, F. Markoe with whom Mr. error. brief, plaintiff Reath was on the *2 William, in H. Werth for defendant error: Mr. damage presumed is a matter
Substantial children; presump- of widow and of law in favor a. course, may and it be shown that fade, is prima tion burden, father was a husband and the deceased the presumption rebutting pre- of such absence evidence recognized applied This presumption vails. Mackey, R. R. v. 157 Balt. & PoL cases: following ed., 584a; Atchison &c. Dam., 2 on 9th 72; Sedgwick § v. Rep. 57; Spiro Felton, Fed. 73 Fed. Ry. Wilson, v. 48 Rep. 576; Fed. Peden v. C., Bridge 78 Am. Rep. 91; 523; Co., Fithian v. Railroad 188 Fed. Co., Rep. 120 Fed- Woolridge, R. R. 51 N. Chicago Rep. &c. v. E. Rep. 842; R., R. N. E. Rep. Dukeman v. Cleveland 86 701; 712; ,& Buck, N. E. Rep- 453; R. R. v. 19 Korrady Louis. Nash. Rep. 1069; Haug 29 N. E. Gr. Co., y. Railroad Nor. v. v. Rep. 97; Hays Hogan, 165 S. W. R., Rep. R. 77 N. W. 1125. , kin of mere next of the contrary In the presump- cas.e 2 Sedgwick Dam., ed., on 9th prevails. 584a; tion Burk § Pac. Rhoades R., Rep. 1065; v. Areata R. 57 &c. Chicago 371; E. Garrett v. Louis. & R. R., Rep. R., R. 81 N. Nash. In re 715, 722; Co., Cal. Nav. 110 Fed. Rep. 197 Fed. Rep. Note, S.) L. A. 670, 677, (N. Case R. see McReynolds delivered the opinion Mr. Justice court.
W. T. a Holbrook, bridge carpenter, aged thirty-eight at a by plaintiff error employed wage $2.75 per train day, killed while passing at his work in County, Virginia, January McDowell West 4, 1913. He left widow, thirty-two years old, and five children of
NORFOLK & RY. v. WESTERN HOLBROOK. fcourt, Opinion one, four, seven, eleven, years. and fourteen The widow as administratrix this qualified and instituted suit under the Employers’ Liability Act, approved April 22, 1908, 149, c. 65, Stat. behalf of herself and children in the United Court, States District Western District of She (cid:127)Virginia. charged resulted from accident arid negligence agents employés of the Railway Com- pany- and at the trial evidence tending to introduced establish returned a verdict for $25,000 fact. in her favor;- judgment thereon was by the Cir- affirmed cuit Court (215 Fed. Appeals Rep. 687); and cause brought here. The orily assignment of error upon' goes now to a relied sentence in single No. wherein comparison instruction is made between the pecuniary injuries a widow and infant children and those of adults or mere next of kin. *3 At the instance of administratrix, the the court told the jury (instruction 4)No. if negligence that Holbrook’s own contributed proximátely only proportionate to his death damages could be then gave recovered and instruction 5,No. in the following words:
“The court if they further instructs the jury be- lieve from the evidence that is entitled to plaintiff recover, then the amount of her damages is, subject diminution, if any, as set out in instruction No. to be measured by pecuniary the injury by suffered the and infant widow children as the direct result the death of the husband and it father, being not permissible jury go for the be- yond the loss and for loss give damages the the love of the by husband or father wife or to compensate them for or sorrow or grief mental anguish death, his or other-purely sentimental or loss.
“However, the court instructs you per- that where infant, sons suffering injury dependent are the widow and children of a deceased husband father, and TERM, U.S; (cid:127)
Opinion the Court. than where much greater suffered would be mere who were were all adults or beneficiaries between deceased kin, existing so that the relation next of factor in his death is a prior and theinfant damages. merely pecuniary of the the amount fixing assess in mind the should above Bearing principles claimed exceeding $40,000, the amount damages, such not widow and fully declaration, compensate as shall explained, all_pecuniary' loss, as hereinafter children for of the death the direct result by suffered them as con- should father, doing husband so sider: “ has been (1) earning capacity' deceased What death, and what of his was at the time prior had he not been in the future probably might have been at the time wages receiving at same he was killed, and, estimating death, evidence; his as shown family his decedent, and what probable earnings of he not life had have realized from them future length probable of his killed; and, estimating been duty killed, it will be the life-had he not.béen intelligence, health, habits, industry, age, consider his shown character, life, the evidence expectancy you. introduced before “ care, (2) will also take into consideration instruction, attention, training, guidance advice intelli- character, habits, disposition, one of decedent’s or indifference duties, to his .gence, parental and devotion thereto, evidence, reasonably as shown *4 minor- give to his infant children their expected to said ity, and the benefit therefrom in the dam- and include the value the same ages assessed.” duly because Railway Company excepted that the widow and infant children
court tells the larger than would damages are entitled be decedent NORFOLK & WESTERN HOLBROOK. RY. v. Opinion 237 U. of the Court. of persons suing
case who distantly were more related.” The exception overruled, was action is now relied on as material error requiring a reversal.
Under the Employers’ Liability Act, where death is
instantaneous,
the beneficiaries can recover their pecuniary
loss and nothing more; but the relationship between them
and the deceased is a proper circumstance for consideration
in computing the same. The elements which make up
damage
total
resulting to a minor child
parent’s
from a
death may materially
different from those démanding
examination where the beneficiary is
spouse
or collateral
dependent relative; but in every instance the award must
upon money
based
values, the amount of which can be
ascertained only upon a view of
peculiar
facts pre
sented. Michigan Central Railroad v. Vreeland, 227 U. S.
59, 68, 72, 73; American Railroad
Porto Rico v. Didrick
sen,
In the case present there was testimony concerning the personal qualities the deceased and the interest which he took in his family. It proper, therefore, to charge might take into consideration care, at- tention, instruction, training, advice and guidance which the evidence been, showed he reasonably might have ex- pected give his children during minority, and to include the pecuniary value damáges thereof as- sessed. But there nothing ther'é could be —indeed nothing show hypothetic might have —to befallen some beneficiary unidentified adult or dependent next kin. The ascertained must govern circumstances n inevery case. There was no to compare occasion rights of the actual with those of supposed dependents; we think the trial court plainly erred when declared that where the persons suffering widow and dependent are the infant children of a deceased *5 TERM, 1914. McKenna, dissenting. Day, Hughes,- JJ., suffered pecuniary injury father the husband and were adults where the beneficiaries greater .than much kin. This gave who next of were mere or rather invited speculation for indefinite occasion to true wholly irrelevant of elements consideration a conjecture instead indulge problem presented —to Baring, Insurance Co. weighing established facts. 159, 161. Wall. of the trial were brought
The out course facts strong sympathy a appeal to constitute adequate jurors by minds the mis- in the naturally engendered dependent children. In such widow and her of a fortunes important charge it was especially circumstances they might which construe anything should be free from evidence. It is the go to outside permission as- a- protect in its relation duty of the court arising impulse, from unjust passion from verdicts parties violation of rights. from other lawful or prejudice, 116, 121. Fant, Wall. Pleasants v. obliged we to conclude the whole record feel
Considering result of the indicated In- language probable -materially prejudice rights 5 was struction No. Company. judgment Circuit Railway accordingly cause reversed Appeals Court of for District the District Court the Western remanded proceedings conformity further with Virginia opinion.
Judgment reversed. Day with whom Me. Justice McKenna, Mr. Justice Hüghes concur, dissenting. and Me. Justice opinion judgment to concur I am unable railway company the criticism that the I think the court. court to the is too severe charge of the makes in a single charge makes a sentence in inference RY. v. HOLBROOK. 631 & WESTERN NORFOLK JJ., Hughes, Day1; McKenna, 235 U. exclusively dominant, push-
occupies page the record do not think ing particulars. aside all qualifications of a court must permissible. this is *6 sentences, not isolated and a whole, by be considered as a pre- of must be country as one the tribunals jury sumed to have some sense. in confronted with the
The court the case at bar was often confronted and difficulty with which courts are to completely which no court has been able yet surmount to or to of home itself by bringing form words —of any through infant children death the loss to wife and present of The court in the case the husband and father. had say something to these relations more ventured something 'in and their destruction had of them .more than “the mere of “pecuniary injury” next kin” and that there be a loss infant children greater than to like to it? any deny adults. Would one not its all that in sentiment upset best, Would denial and in life? And must that sentiment and duty, duty, so potent conduct, illegal emphasize motive and in a of interference with the justice court as an strict standards of the law? these I
By standards, admit, the court determined, must be let us turn to and, therefore, them applied by the district court. The court said the amount by must recovery pecuniary injury “be measured by suffered the widow and as the direct infant children result of the death of and it not father, the husband being loss permissible go beyond for and fbr the loss the love the husband or give damages or or to them children, compensate father wife for or sorrow or mental or other grief anguish death, for (Italics or loss.” Can purely mine.) sentimental there mistake the standard declared any not not sorrow, anguish, court? not mental love, Not loss “as direct result sentiment, money TERM, Day, Hughes, JJ., 235 U. McKenna, that'money being perr loss “it not death,” beyond n The standard then is go.” money tó for the missible words, pecuniary injury court’s to use- the or, loss, or impulse excuse No prompting suffered.” ' imagination left sway. nor given, passion and held to the jury.'was brought judgment to wife destroyed of the life value money' computation it. And the elements in the upon dependent They enumerated as were not left were undefined. at Earning capacity time death and (1) follows: In estimating latter, of its continuance. probability of it to wife thé the value hence habits, ‘industry, age, health, to consider told were and his expect- of the deceased character intelligence all, may say as shown ancy life, evidence — none found fault with. elements and strictly legal passing, *7 to his those devotion qualities Regarding (2) and.his as the thereto, by or indifference shown duties parental to take into considera- were instructed the evidence, instruction, training, advice attention, care, “the tion expected would be reasonably which “he guidance” and infant, and minority, children to his give in- to said and therefrom benefit pecuniary the damages of the same the value pecuniary the clude assessed.” be iteration, will money standard with careful
A dispute is no and there throughout, is declared observed, of applied; to which it is to be the elements as to estimating. of duty the assigns the law or of the is asserted-of these elements no error repeat, but coun- by jury, value the pecuniary of their estimate have been vicious and say sel that were made they misunderstood made by comparison exaggerated de- widow and children and between the by the court infants next of kin and between who were mere pendents court’s give language. well to may It be adults. v. HOLBROOK. & WESTERN RY. NORFOLK JJ., 235 U. Hughes, McKenna, Day, should be the amount recovered meas stating that After the court injury suffered, added, pecuniary by ured where you persons court instructs that “However, widow dependent- are the and infant suffering injury (cid:127) father, of a deceased husband than greater much where the injury suffered all adults or who were were existing so the relation between next of that kin, mere prior death and the infant beneficiaries deceased merely amount fixing is a factor in error objected is the instruction was damages.” It the widow and chil told the because the court “larger damages” deceased were entitled dren suing who persons have been allowable were than would first impulse the mind related. is distantly more and the is objection, impulse supported against Balt. & of cases. In Pot. R. the deliberate resolution R. Michigan U. S. Central R. R. v. Mackey, 72, are Vreeland, expressed. the same distinctions say counsel this court an explanation In those cases law that rule for general proposition nounced degree proven depend differ damages must beneficiary differs,” add, “but matter ence court opinion appellate may inap in an of an suitable latter jury.” to a statement propriate be that the law declared intangible. rather It cannot is court unsuitable to be followed appellate an pending The court case did court. besides trial as de express damages the elements no more than *8 relationship of the deceased to the pendent upon one, a is natural based on beneficiaries. distinction of a life, by. and I cannot conceive mistake of realities There may be, indeed, special jury application; its may be, crippled there of cases, and counsel imagines or kin who, or infirm next of on diseased adults account special entitled to a condition, may of their considera- TERM, McKenna, JJ., Day, Hughes, of their possibility but existence did not tion, make the of the court or erroneous, instruction that the jury in have a way might “comparison some made between who were before the court beneficiaries and hypothetical who were not in the all.” case at In other contention is that words, was left or invited conjecture example an extreme of .im- next of kin as aginary dependent necessarily below the to the or limit infant children, widow notwithstanding the careful' of enumeration the ele- damage of contained in the of charge ments the court. I to the yield am unable contention. The court only expressed general distinction, a natural one based on experience supported general legal difference n obligations. It a distinction recognized by the statute by virtue of which the action was brought as determin- of ing precedence the order its beneficiaries. The law, recognizes and it is not to therefore, the.fact, be put out that there is a view, difference the relation of a widow a deceased husband and father and the of kin, relation next whatever be the degree dependence of the latter. But, granting am mistaken may in this and that theré exceptional cases of de- they pendent kin, next do not constitute the rule, and objection the court too general. was that objection the instruction took in elements of damage improper to be considered the jury because told the court that widow and infant chil- decedent” were dren “entitled to larger damages than more, persons be the case of suing 'who were dis- related.” It was tantly out, not pointed therefore, wrong the court was in its generality on account of ex- ceptional instances which were left to imagine, In universally wrong. other words, objection not, now’is, the court committed the case imagination made the “relationship *9 CO. JACKSON OIL v.
WATHEN Statement the Case. and her plaintiff deceased a itself” fixing amount factor to be considered been so objection special If the had and ex- .damages. to. At yielded any rate, it have been it was plicit should not generality of its now be wrong because therefore, should The be affirmed. regarded. judgment, Day to Mr. say Justice am authorized Mr. Hughes concur in this dissent. Justice OIL & JACKSON REFINING COM WATHEN PANY. THE COURT OF THE UNITED DISTRICT STATES APPEAL FROM THE DISTRICT OF MISSISSIPPI. FOR SOUTHERN January 11, 1914. Decided November 1915. No. 79. Submitted of a as an enforcement statute unconstitu- right restrain the right existing corporation property is a in the deprivation of its tional entitled to maintain such an is^iot action itself, and a stockholder clearly means within showing that he has exhausted the his without conformity corporation to wishes. action to obtain reach 94) (formerly confer'juris- No. order Equity Rule No. Under of a suit a stockholder enforce a upon a Federal court diction only allege corporation the bill must not remedy belonging to the juris- purpose conferring for the a collusive one is not that the suit induce the have been made’to efforts that unsuccessful but diction making for not such bring or the reasons the suit corporation efforts. enjoin of a officers in suit to assertion, by a stockholder bareA alleged unconstitu- complying to be with statute from corporation comply wish to with do not and directors tional, the officers stating penalties, incurring without fear of intend to for procure cor- action dispensing with efforts ground for Equity No. under Rule is not sufficient poration, constitutionality certáin involve facts, which Mississippi labor law ten-hour of provisions