6 S.D. 583 | S.D. | 1895
On the night of May 6, 1889, one Fred A. Smith, an unmarried man, about 28 years of age, while acting as breakman on defendant’s railway, was killed in the collision between the freight train on which he was employed, as break-man, and an empty freight car, that had, from some cause, left a side track and run onto the main track, and which, it is alleged, was negligently left upon said side track, improperly and negligently secured. The said Fred A. Smith left no widow or children, but a father, William B. Smith, who took out letters of administration upon his estate, and brings this action as such administrator, to recover the sum of $20,000, as damages caused the estate by his death.
The complaint is in the usual form, and the answer is, in effect, a general denial, except as to the due incorporation of the defendant, which is admitted. The only allegation in the complaint necessary to be specially referred to is the following: “That deceased died insolvent, and left unliquidated debts and claims against his estate, and left surviving him an aged father and mother, largely dependent upon him for support. ” There is only one question presented by the record in this case for our consideration, and that is as to the measure o f damages that the plaintiff was entitled to recover. The only evidence upon the subject of damages was that given by the plaintiff, and was, in substance, as follows: That he was the father of the deceased, and was 64 years of age; that his son, the deceased, was, at the time of his death, of the age of 28
We shall assume, for the purposes of this decision, without deciding, that the action was properly brought by the plaintiff, as administrator, and that he was the only party beneficially interested in the verdict and judgment, as no objection to the form of the actiofi was made by the defendant and respondent, and the plaintiff and appellant cannot be heard to question the regularity of his own proceeding in this court. We deem it necessary to make this statement, that it may not be assumed that we have decided that the action was properly brought in the name of the administrator, or can be maintained by a father as heir or administrator, when there is no widow or children.
This' action was brought under the provisions of section 5499 of the Compiled Laws, which reads as follows: ‘‘If the life of any person or persons is lost or destroyed by the neglect, carelessness, or unskillfulness of another person or persons, company or companies, corporation or corporations, their or his agents, servants or employes, then the widow, heir, or personal representatives of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover damages for the loss or destruction of the life aforesaid.” The court, in its charge to the jury, after reading to them the foregoing section, instructed them as follows: “That is, for the loss which has been occa-' sioned to those who are dependant upon the deceased person,' — ■ the pecuniary loss which they have suffered by reason of his being taken away. At common law, which is the law known as the law distinguished from the statute of a state, no one could recover for the death of a person that was caused by negligence, for the reason that an action of that character — an. action for tort or wrong and negligence is of that character — did not survive the person that was killed, and it was only under
In discussing the question involved in this case, it will be. niecessary to call attention to the fact that, as the section we have quoted originally stood in the Code of Civil Procedure, the word “damages,” in the last line, was preceded by the word “punitive,” so that the section (677) originally read, “and recover punitive damages for the loss,” etc. In 1887 the word “punitive” was stricken out. Section 1, c. 27, Laws 1887. This is an importaiit fact, as showing the intention of the legislature to change the rule allowing a recovery for “punitive,” exemplary or vindictive damages, and to limit parties to a recovery for actual or compensatory damages only. In view of this action by our state legislature, in striking out the word “puni
It will be noticed that in the above case; the facts were quite similar, and in fact almost identical, to those in the case at bar, and that the granting of a nonsuit by the trial court was affirmed. - It will have been observed in the case at bar, that substantially the only fact upon which the plaintiff relies to recover is the fact that he is the father of the deceased. It did not appear that since his son came of age he had contributed one dollar to the support of his father, or that his father had any reason to expect that he would contribute anything in the future. The plaintiff therefore showed no pecuniary loss for which he could recover. Iii the quite analogous case of Coal Co. v. Limb, 47 Kan. 469, 28 Pac. 181, the supreme court of Kansas says: “It is contended that the verdict is excessive, and unsupported by testimony showing that the next of kin sustained pecuniary loss by the death of Daniel Limb. In this respect there is a fatal lack of testimony. It is not shown that the parents of the deceased ever received any support from him nor were they dependent upon him to any extent, for support or assistance. Neither is there any evidence in the record to show' their pecuniary condition. * * * This is an action for copipensatiop only, and no damages can be re
Our attention has been called to only one case that holds a contrary doctrine. That is Railroad Co. v. Barron, 5 Wall, 90, But that case stands entirely alone, and, for some reason, no reference seems to have been made to it in any of the late cases cited. In Ulipois, in which state that case arose, and in which it was tried in the United States circuit court does not follow the doctrine of the Barron Case. In the case of the City of Chicago v. Scholten, 75 Ill. 468 (decided eight years after the Barron Case), the supreme court of that state says: “Where the neicf of kih fyre collateral Ijindred qf the deceased, an<f