104 F. 845 | U.S. Circuit Court for the District of Nebraska | 1900
This is an action brought by plaintiff, as administratrix of the estate of one Edward J. Thompson, deceased. The petition alleges that the plaintiff and one William J. Thompson were married in November, 1881, and that the deceased was the fruit of said marriage; that said Edward J. Thompson was, at the time of his decease. 14 years of age; that William J. Thompson, the husband of the plaintiff, more than 1.0 years prior to the bringing of the action, wrongfully deserted herself and family, had been absent from them since that time, and had furnished no sustenance or support for them, or either of them; that the deceased was a strong, healthy, capable,
The cause came on for trial upon the issues joined. Testimony was introduced on the part of the plaintiff, which, in substance, established the fact that the death of deceased was caused by the negligent acts of the defendants, as stated in the petition. The evidence further established the fact that William J. Thompson, father of deceased, was at the time still living; that for more than 10 years prior thereto' he deserted plaintiff and his child, the deceased, had wholly failed to contribute to the support of either his wife or child, and during said time had not visited or communicated with them. At the close of plaintiff’s evidence the court directed the jury to return a verdict for the defendants, on the ground that the action was one brought under the provisions of chapter 21, Comp. St. Neb. 1897,-under which statute the action could only be maintained for the pecuniary loss which the next of kin to deceased had sustained by reason of his death; that under the statutes of Nebraska the father was the next of kin and only heir of deceased; that, under the allegations contained in the petition and the evidence in support thereof, it conclusively appeared that the father, the next of kin, had not sustained any pecuniary loss for which a recovery could be had, under the provisions of the statute. Plaintiff has filed a motion for a new trial, and challenges the correctness of the rule of law thus announced to the jury in directing a verdict;
The present action, being one unknown at common law (Insurance Co. v. Brame, 95 U. S. 754, 24 L. Ed. 580; Sullivan v. Railroad. Co. [C. C.] 2 Fed. 447), but based upon the state statute, the decisions of the supreme court of this state construing the statute are binding upon this court. This being an action at law, the rales of pleading and practice, as announced by the supreme court of the state, also govern this court. The statute of the state which is the basis for the present action has been construed in numerous cases by the supreme court. City of Friend v. Burleigh, 53 Neb. 674, 74 N. W. 50; Orgall v. Railroad Co., 46 Neb. 4, 64 N. W. 450; Railroad Co. v. Van Buskirk, 58 Neb. 252, 78 N. W. 514; Railway Co. v. Young, 58 Neb. 678, 79 N. W. 556. An analysis of these cases establishes the doctrine that the facts stated in the petition must show that the .next of kin were persons who were dependent upon deceased for their maintenance and support, or that deceased was under a legal obligation to furnish such next of kin support and maintenance, and that the facts must support such allegations to entitle the party to recover, under a general claim of damages. If special damages have been sustained by the next of Mu, such special damages must be alleged in the petition. They cannot be shown or recovered under a general claim of damages. The supreme court of the state, in announcing- this rule, expressly adopt the rule announced by the supreme court of Michigan in the case of Hurst v. Railway Co., 84 Mich. 539, 48 N. W. 44, wherein it was held that the father was not entitled to recover for the loss of services on account of the death of his minor child, in the absence of allegations of fact in the petition showing that such minor child would have rendered services which would have been of value to the father; that the claim for loss of services was in the nature of special damages which must be specially alleged and proven. .While the rule, as announced by the supreme court of this state in following the Michigan case, is not in harmony with the doctrine announced in many other states, as shown by the authorities cited upon the part of the plaintiff, yet the court in Railway Co. v. Young say:
“Whether upon this question we are in line with the current of authority in other jurisdictions is not important. The rule we have adopted is not contrary to sound principle. Tt is reasonable and just, and, after mature deliberation, we have concluded to adhere to it.”
Under the law in this state, there can be no question that the father was the next of kin to deceased, and that the recovery in this case, under the statute in question, can only be bad for the damages which it may be reasonably inferred the father has sustained by reason of the death of bis minor son. If the petition should be amended, the facts, nevertheless, would remain that the father, more than 10 years prior to the deceased’s death, abandoned bis wife and deceased, and gave them no support and protection. Under such state of facts, is the father entitled to the services of the son whom be thus abandoned? In Rodg. Dom. Rel. § 467, it is said:
“If the father deserts and abandons his family, exercises no control over them, interferes with them in no way, manifests no interest in their welfare, does not communicate with nor look after them, the relation- of master and servant is dissolved, and the principal of servitude no longer sustains the right of the father to the wages of his infant son. It is as if the father were dead, and the custody of ihe child and the right to appropriate his earnings thereby devolve upon the mother. If the father refuses to be a parent in act as well as in name, the law will not recognize his right to control the earnings of his infant child, whom he thus casts aside to neglect.”
Tbe rule is well settled that, if tbe father emancipates bis minor child, be is no longer entitled to tbe earnings of such child, and emancipation may be inferred by acts.
In 17 Am. & Eng. Enc. Law, p. 397, it is said:
“If the parent forces the child to leave the house or deserts or abandons him, the child is released from all filial duties which the law will enforce, and may seek his own welfare in his own way. Thus, an emancipation may be accomplished by wrong and violence.”
And, as stated by Schouler, Dom. Rel. § 267: “Tbis is termed tbe presumption of necessity.”
In the note to Wilson v. McMillan, 35 Am. Rep. 117, it is said:
“Emancipation is always presumed in cases of necessity. Thus, if the parent absconds, expels his child, or leaves him to shift for himself, and refuses or neglects to provide, emancipation is presumed. * * * It would certainly be a great defeet in the laws of any civilized people if they furnished no mode by which the innocence and helplessness of infancy, and the purity and ingenuousness of youth, could be protected from the brutality of an unnatural parent. As a father may forfeit his right to the custody and control of his child’s person by abusing his power, so, by neglecting to fulfill the obligations of a father, he may forfeit his right to the fruits of his child’s labor. If. he provides no home for his protection, if he neither feeds nor clothes him, nor ministers to his wants in sickness or health, it would be a most harsh and unnatural law which authorized the father to appropriate to himself all his child’s earnings. * * * But where the father has discharged himself of the obligation to support the child, or’ has obliged the child to support himself, there is no principle but that of slavery which will continue his right to receive the earnings of the child’s labor.”
While it is true that, the emancipation on the part of the father being presumed because of his desertion of his child, the right to the earnings of the child would belong to its mother, yet a recovery could not be had in this case, for the reason that the mother was not the next of kin, the father having survived the child. It is doubtless true that in a case like this the mother ought to receive the damages which would, but for the desertion and emancipation upon the part of the father, entitle him to recover, yet the court cannot extend the provisions of the statute which limits the recovery to the pecuniary loss sustained by the next of kin only. The father being the only next of kin, and having sustained no loss, the motion for a new trial is overruled.