201 P. 102 | Ariz. | 1921
This is an action under the Employers’ Liability Law (Civ. Code 1913, pars. 3153-3162). Fifty thousand dollars as damages for personal injuries was prayed for, but judgment for $18,700 less $2,700 was entered in accordance with the verdict of the jury. From this judgment and the order denying its motion for a new trial the defendant, the Silver King of Arizona Mining Company, a corporation, appeals.
The plaintiff, Edward Kendall, while in the employ of the defendant company as a miner, was injured by a blast or explosion occurring near 'where he was working, which threw ore, dirt, and other materials over, against, and into his body, resulting in the total loss of his right eye and a partial loss of the left, thus depriving him of his sight to the extent that he will not be able again to follow any useful or gainful occupation requiring vision. It is also alleged and testified to that his hearing has been greatly impaired and that his head, face, arms, neck, legs and heart were injured as well. The answer admits that appellee suffered an injury while in its employ, but denies that it was the result of an accident which arose out of and in the course of his employment and was due to a condition or conditions thereof, but pleads affirmatively that it was caused by his own negligence. At the trial, however, appellant did not attempt to substantiate its pleadings in this respect, but admitted through its attorney “that the plaintiff has a cause of action against the defendant under the Employers’ Liability Law.” The parties were unable to agree on the extent of the injury, and consequently the amount that would properly compensate appellee therefor, so they presented to the jury for its de
Over appellant’s objection the following answers by appellee, in response to questions by his counsel upon his examination in chief, were permitted:
“Q. Are you married or single? A. Tes; I have a family.
“Q. Of whom does your family consist? A. We have a child.
“Q. Are you living with your family, Mr. Kendall?
“A. I am.
“Q. How old is your daughter? A. Twelve years old.
“Q. Are you or are you not the support of your wife and child? A. I was up until the accident.”
And the following answers by Mrs. Marie Kendall, in response to questions by counsel for appellee, were permitted over the objections of appellant:
“Q. Are you the wife of Edward Kendall, the plaintiff in this action? A. I am.
“Q. How many children have you by Edward Kendall? A. I have one.
“Q. What is her name? A. Dorothy.
“Q. How old is Dorothy? A. She is 12.”
The admission of this testimony, together with the denial of appellant’s motion for a new trial based thereon, is the only error assigned.
The legislature of this state, in obedience to a constitutional mandate based upon the proposition that industry should bear the burden of its own maintenance, has provided in the Employers’ Liability Law a method by which an employee injured in a hazardous occupation may recover for the loss he has sustained therefrom when the accident causing the injury occurs through the fault of neither himself nor his employer. The unavoidable risks and hazardous character of the occupation or employment in which the workman is at the time engaged must be the cause
It being true, then, that the loss the injured employee himself has sustained is the proper measure of damages, we are unable to see wherein the fact that appellee has a wife or child, or that they were supported by him up to the time of the accident, is either relevant or material. It is not a matter of their loss but of his, and this would be the same whether he was married or single, whether he had children or had not, or whether he was their support up to the time of the accident or not. His earning power during the remainder of Ms life, had he not been injured, would have been so much, and the fact that he was married would neither lessen nor increase it. As said by the Supreme Court of Alabama in Louisville & Nashville R. Co. v. Binion, 107 Ala. 645, 18 South. 75:
“The damages sued for are for the injury inflicted on the plaintiff, and not on his family, and for which the law allows him compensation, no more and no less in case he is single than if married and the father of a child or children. The recovery is for his benefit solely. ’ ’
The Supreme Court of Utah, in considering the same proposition, used the following language in
“The plaintiff, over the defendants’ objections, was permitted to show that he had a wife, and six children from two and one-half to sixteen years of age. Complaint is made of this. ... We think the evidence complained of1 was improperly received. It had no legal relevancy to prove what was claimed for it. Tlie character and extent of the injury and plaintiff’s ability to labor and produce were in question. . . . His injuries and his ability or disability to labor were the sarnie whether he had no family or a large family. Nor was the evidence material.”
To the same effect are the following and numerous other authorities: Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141 (see, also, Rose’s U. S. Notes); Union Pacific R. Co. v. McMican, 194 Fed. 393, 114 C. C. A. 311; Lacorazza v. Cantalupo, 210 Fed. 875, 127 C. C. A. 459; Chicago v. O’Brennan, 65 Ill. 160; Rio Grande S. R. Co. v. Campbell, 44 Colo. 1, 96 Pac. 986; Sanitary Can Co. v. McKinney et al., 52 Ind. App. 379, 100 N. E. 785; Crouse v. Chicago & N. W. Ry. Co., 102 Wis. 196, 78 N. W. 446, 778; Simpson v. Foundation Co., 201 N. Y. 479, Ann. Cas. 1912B, 321, 95 N. E. 10; Williams v. St. Louis etc. Ry. Co., 123 Mo. 573, 27 S. W. 387; Galion v. Lauer, 55 Ohio St. 392, 45 N. E. 1044.
Whatever may have prompted the offering of this testimony, its introduction shed no light on the question to be decided, and could only have had the effect of winning the sympathy of the jury for appellee and thereby prejudice the rights of appellant. Hence it cannot be said that it did not result in enhancing the amount of the verdict in favor of the former; its tendency was undoubtedly in that direction. As said by the court in Carlile v. Bentley, 81 Neb. 715, 116 N. W. 772:
*45 “The tendency of snch evidence is to inflame the minds of the jurors and arouse their sympathies, and thus unduly enhance the amount of the recovery. Such evidence was neither relevant nor material, and its admission was prejudicial error.”
The Supreme Court of Illinois, speaking of the same matter, used the following language in Chicago v. O’Brennan, 65 Ill. 160:
“Was this evidence admissible? If it was, then it would have been competent to have gone farther, and shown all the circumstances of the family: Such as that the mother was an invalid; that one of the daughters was blind; that one son had accidentally lost a leg, etc., if such had been the case, so as to present a most pitiable picture of a helpless family dependent upon appellee for support. . . . For, as the evidence had no place in the case but as a stimulant to the sympathy of the jury, it would be just as competent to make the stimulant strong as weak.”
The proposition is so plain that the citation of other authorities is unnecessary, though the following are in point: Atchison, T. & S. F. Ry. Co. v. Ringle, 71 Kan. 839, 80 Pac. 43; Hecke v. Dunham et al. (Mo. App.), 192 S. W. 120; City of Galion v. Lauer, 55 Ohio, 392, 45 N. E. 1044; Kreuziger v. Chicago etc. Ry. Co., 73 Wis. 158, 40 N. W. 657; Alberti v. New York etc. R. Co., 118 N. Y. 77, 6 L. R. A. 765, 23 N. E. 35.
It is urged by appellee that, even though it be error as a general proposition to permit such evidence to go to the jury, appellant in this case is not in a position to take advantage of it, for the reason that its answer alleges that since the accident appellant has expended in behalf of appellee, because of the accident and injuries sustained by him and for the support of himself and his family, the sum of $2,750, and for the further reason that evidence was introduced in support of this allegation
It is further contended that the error was cured by the instructions. It is true that the court correctly instructed the jury as to the proper measure of damages when he advised it that the amount of recovery
“It is impossible for us to know what portion of the verdict in this case was allowed because appellee had a family. The evidence was before the jury for the ■ purpose of enhancing the damages, and we have no doubt it produced that result.”
The error, perhaps, could have been cured by cautioning the jury in its instructions against increasing the amount of the verdict on account of the plaintiff’s having a wife and child, and that he had supported them up to the time of the injury. Nowhere, however, was the jury admonished to disregard this evidence, though doubt as to its admissibility was expressed by the court at the time it was offered. The failure to do this, however, even though the instructions were otherwise correct, is ground for a reversal of the judgment. Galion v. Lauer, above; Kinsley v. Morse, 40 Kan. 577, 20 Pac. 217; Central Passenger Ry. Co. v. Kuhn, 86 Ky. 578, 9 Am. St. Rep. 309, 6 S. W. 441; Vosburg v. Putney, 78 Wis. 84, 47 N. W. 99.
“It is further suggested that the rule which forbids the introduction of this kind of evidence ought to be abandoned because the information imparted to the jury by the answers to these questions might have been obtained by them as well by the calling of the children as witnesses, or by their presence in court. This reasoning does not appeal to us as being-sound. That incompetent evidence may sometimes reach the jury as an inseparable element of competent evidence does not warrant courts in permitting the introduction of the incompetent evidence alone. This class of evidence has been condemned because of the prejudice, or bias, which it is likely to excite in the minds of a jury, and in this case, after carefully examining the evidence relative to the character of the injury, we are not prepared to say, in view of the size of the judgment, that they were not unduly influenced thereby.”
Appellee contends further that if the erroneous admission of evidence has, in the judgment of this court, resulted in an excessive verdict, he should have the privilege of curing it by remitting the excess. It is true that this court has the power in a proper case to affirm a judgment upon the filing by the appellee of a remittitur in the amount held to be excessive, but such is not true where the excess has been brought about through the weight of immaterial, irrelevant, and incompetent evidence. It is impossible, as was said in Pittsburg etc. R. Co. v. Powers, above, for us
The judgment is reversed and case remanded to the superior court for a new trial.
ROSS, O. J., and FLANIGAN, J., concur.