Phoenix Railway Co. v. Landis

108 P. 247 | Ariz. | 1910

CAMPBELL, J.

Appellee, as administrator of the estate of George W. Sanders, recovered a judgment of $5,000 against appellant, as damages resulting to the estate of Sanders from his death, alleged to have been caused by the negligence of appellant.

The first assignment of error challenges the sufficiency of the complaint, inasmuch as it “failed wholly to show that anyone beneficially interested in the estate of George W. Sanders had been pecuniarily damaged by reason of the alleged death of the deceased.” This contention of appellant has been disposed of by us in Southern Pacific Co. v. Wilson, 10 Ariz. 162, 85 Pac. 401, and again in De Amado v. Friedman, 11 Ariz. 56, 89 Pac. 588; and we see no reason, in the light of appellant’s discussion, to recede from the views we have heretofore expressed.

The second and third assignments of error are directed to the trial court’s ruling in permitting certain hypothetical questions to be answered by physicians. The abstract of record sets forth the questions in full. They are lengthy and purport to recite facts in evidence upon which the opinions of the witnesses are sought. The record merely recites that the answers were received in evidence “over the objections of counsel for the defendant, ’ ’ without in any wise disclosing the grounds, if any there wére, upon which the objections were based. We must assume from this record that the objections were general ones. General objections to such questions are wholly unavailing. Rush v. French, 1 Ariz. 99, 25 Pac. 816. Counsel on either side, in their briefs, differ as to the form of the objections as actually made, and invite us to scrutinize several pages of the reporter’s transcript. This we must decline to do. Our rules provide: “The abstracts of record, as filed, will be treated by the court as containing such portions of the record as the parties deem sufficient upon which to try the assignments of error. ’ ’ Subdivision 6, Rule 1 (8 Ariz. iv, 71 Pac. vi). We have so frequently commented upon the necessity of compliance with the requirements of our rules in this respect that there would seem to be no excuse for failure to do so. Liberty Mining & Smelting Co. v. Geddes, 11 Ariz. 54, 90 Pac. 332; Donohoe v. El Paso & S. W. R. R. Co., 11 Ariz. 293, 94 Pac. 1091; Title Guaranty & Surety Co. v. Nichols, 12 Ariz. 405, 100 Pac. 825, However, should we assume that counsel for appellant in their briefs have correctly set forth the grounds of the objections as made to the trial court, we perceive no error in the rulings complained of.

Appellant contends that the instructions of the court are contradictory and misleading. The court clearly instructed the jury that, should they find for the plaintiff, they should award such damages as would fairly compensate the estate of the deceased for the loss sustained by reason of his death. Thereafter, in another instruction, the court said to the jury: “I charge you, however, that it is not necessary on the part of the plaintiff to show the precise money value of the life of the deceased, or the exact amount of damages suffered by the beneficiaries, in order to sustain a recovery for substantial damages. ’ ’ In the succeeding instruction the jury were again told that the damages to be allowed were such ‘ ‘ as the estate has suffered, all of the circumstances considered, by reason of the death of the deceased.” Appellant contends that these instructions are conflicting and contradictory; that they gave the jury to understand that such damages as the estate suffered might be awarded, and also such as those dependent upon the deceased had suffered. The term “beneficiary” does not appear to be recognized by lexicographers as having the precise meaning which is usually given it when employed in actions to recover damages for death by wrongful act. It seems to have come into use as a legal term following the suggestion of Judge Story, in his work on Equity Jurisprudence, that “to escape from the awkwardness of a barbarous foreign idiom” the person beneficially interested in a trust should be called the beneficiary, rather than the cestui que trust. Story’s Equity Jurisprudence, see. 321. It has been so defined by statute in some states. 1 Words and Phrases, 750. It is also used to designate a person to whom a policy of insurance is payable. In an action to recover damages for death by wrongful act, where the damages to be recovered by a representative are those suffered by certain individuals indicated in the statute giving the right of action, those for whose benefit the recovery is sought are usually designated as beneficiaries. It is not wholly inapt to refer to the estate as the beneficiary, where, as in this territory, the damages to be recovered by an administrator are such as the estate has suffered. But conceding, as we do, that the term “beneficiaries” as here used is technically inappropriate, it does not follow that the verdict should be set aside. Instructions to juries must be so framed as clearly to define the law, and must not be contradictory; but the error involved in the use of an inappropriate word, where it does not serve to confuse or mislead the jury, is harmless. This action was tried throughout upon the theory that the damages to be awarded, if any, were such as were suffered by the estate of the deceased. There was no testimony concerning the existence of anyone dependent upon Sanders, nor that anyone had suffered pecuniary injury by reason of his death. The jury were plainly instructed, just prior to the giving of the instruction complained of, that the damages to be awarded were those suffered by the estate, and in the instruction next following were again so charged. We are unable to perceive that the term complained of, in the connection in which it was employed, and under the circumstances appearing from the record, could have confused or misled the jury.

Appellant insists that the verdict is excessive. The deceased was sixty-two years of age at the time of his death. He was by profession a mining engineer, and there was testimony tending to show that prior to receiving the injuries which resulted in his death he was in robust health; that he was, and for some time had been, in the employment of a mining company, at a salary of $100 per month, and in addition was furnished a house and provisions for himself and wife. His life expectancy is shown to have been twelve and eighty-six one-hundredths years. Under this testimony, we cannot say that the verdict is excessive.

The remaining assignments of error are without merit, and do not require discussion.

We find no reversible error in the record, and therefore affirm the judgment of the district court.

DOAN, LEWIS, and DOE, JJ., concur. KENT, O. J., took no part in the determination of this case.