37 Kan. 1 | Kan. | 1887
The opinion of the court was delivered by
Upon the general statement in this case, the facts are as follows: William Dunden jr. was injured on Au
It is claimed that the probate court of Leavenworth county had no jurisdiction to issue letters of administration to William Dunden, upon the ground that his son left no estate. The authority for granting letters of administration is found in §1, chapter 37, Compiled Laws of 1885, which reads:
“ That upon the decease of any inhabitant of this state, letters testamentary, or letters of administration, on his estate, shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death.”
The contention is, that there is no provision in the statute for administration, either in the case of a resident or a nonresident, unless there is an estate to be administered. ( Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kas. 420.) Whether the rule announced in the foregoing case applies to the issuance of letters of administration upon the decease of an inhabitant
“That he would make a true and perfect inventory of and faithfully administer all the estate of the said deceased, and pay the debts as far as the assets would extend, and account for all assets which should come to his possession or knowledge.”
The records of the probate court were read to the jury. The only evidence offered to contradict or rebut the prima fade case-made was in the cross-examination of the father of the deceased, who testified, among other things, that his son at the time of his death had “nothing, other than some little change; that what he had in the way of personal effects and clothing he had provided him with; that he had worked at one time for a canning factory, and earned a little money; that he did not know how much of this he had, as that was a matter between the boy and his mother; that when he earned money he gave it to his mother; that while working for the canning factory he received twenty-five cents a day.” Admitting that the evidence of the father was contradictory to J and conflicting with the findings and records of projjate court} yet it was not conclusive. The personal representative, in cases like this, brings the action, not
It is next claimed that the trial court erred in instructing the jury that if they found for the plaintiff they could use their common knowledge in assessing his damages, without evidence as to the amount thereof. The language of the instruction may perhaps be criticised, but the instruction, as aPphed to this case, was neither erroneous nor misleading. In such a case as this the jury may estimate the pecuniary damages from the facts proved, in connection with their own common knowledge and experience in relation to matters of common observation. It is not absolutely necessary that any witness should have expressed an opinion of the amount of the pecuniary loss. Damages are to be assessed by the jury with reference to the pecuniary injury sustained by the next of kin in consequence of such death. This is not only the actual present loss which the death produces, and which could be proved, but also prospective losses. How this pecuniary damage is to be measured, or what shall be the amount, must be left largely to the discretion of the jury. The coui’t undoubtedly intended by the instruction to inform the jury, and they must have so understood, that if they found for the plaintiff they could use their common knowledge in assessing his damages, without direct evidence of the specific pecuniary loss. The jury had presented to them, evidence of the -parents of the deceased; their position in life; the occupation of the father; the condition of his health; the age of his son; his intelligence; his ability to earn money, etc.; and it was their province, from this evidence and their general knowledge, to form an estimate of the damages with reference to the pecuniary injuries, present and prospective, resulting to the next of kin. It is impracticable to furnish direct evidence of the specific loss occasioned by the
In the case of Waite v. Teeters, 36 Kas. 604, the instruction that the jury might use their own knowledge in determining the value of the corn, was held to be misleading; but in that case proof could easily have been offered of the value of the corn standing in the field, although it was distant from the railroad and market.
In A. T. & S. F. Rld. Co. v. Brown, Adm’r, 26 Kas. 443, referred to as controlling this case, the deceased was twenty-five years of age, with a widowed mother and a sister, who lived off the property they owned. In that case the testimony showed that the deceased had been worth nothing to his mother up to the time of his death, and it was well said, “that judging the future by the past, the .life of the deceased was one which would have been of little value.” In that case the deceased had lived long enough to establish that there could be no reasonable expectation of pecuniary advantage to the mother from his life.
In A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 Kas. 543, also referred to as an authority, the jury found specially that the deceased was in the habit of drinking intoxicating liquors to excess, for years before his death, and that his life was of no pecuniary value to his next of kin. In such a case, clearly nothing but nominal damages could be recovered. In that case the principal contention was, that as no actual damage or pecuniary loss was sustained by the next of kin, not even nominal damages could be recovered.
“In the very nature of things it seems to us an exact and uniform rule for measuring the value of the life taken away to the survivors, is impossible. The elements which go to make up the value are personal to each- case. All that can well be done is, to say that the jury may take into consideration all the matters which go to make the life taken away of pecuniary value to the survivors, and, limited by the amount named in the statute, award compensation therefor. To go beyond this, and lay down an arbitrary rule for valuing the life of the deceased, a rule applicable to all cases alike, however satisfactory it might be because of its uniformity, would in many instances operate to defeat the accomplishment of the wholesome purposes sought by this act. It was well said by Mr. Justice Nelson in the case of Railroad Co. v. Barron, 5 Wall. 90, that ‘the damages must depend very much on the good sense and sound judgment of the jury, upon all the facts and circumstances of the particular case.’ ” (K. P. Rly. Co. v. Cutter, 19 Kas. 91.)
As to the question whether the deceased knew it was wrong to play upon the turn-table, an answer either way would not have affected the case. He might have known that it was wrong to trespass upon the property of the railway company and yet have had no knowledge that the use of the turn-table was dangerous, or even unsafe. If the company had presented the inquiry whether the de
Further complaint is made, that the damages are grossly excessive. We cannot say that the judgment as rendered is so excessive as to require this court to reverse the judgment. In Illinois, where the action was tor the death of a boy between six and seven years of age, a verdict for two thousand dollars was sustained, (Railroad Co. v. Becker, 84 Ill. 483.) In Tennessee, a verdict for three thousand dollars for the death of a child eighteen months old was sustained. (Railroad Co. v. Connor, 9 Heisk. 20.) In New York, where the deceased was between six and seven years of age, the jury awarded thirteen hundred dollars as damages for loss of probable future services, and the court refused to set aside the verdict as excessive. In that case there was no proof that the child was earning anything at the time she was killed. (Oldfield v. Railroad Co., 3 E. D. Smith, 103.) In another case in the same state, where the action was for the death of a boy eight years of age, a verdict of twenty-five hundred dollars was rendered, and the supreme court would not interfere. (McGovern v. Railroad Co., 67 N. Y. 417.) In another case in the same state a girl of six was struck by a locomotive, and killed; the jury awarded five thousand dollars damages. The court was asked to set aside the verdict as excessive, but declined to interfere, saying that as a matter of law it was impossible to say that the actual pecuniary injuries resulting from the death of the infant might not be that amount. (15 Cent. L. J. 286.)
The judgment of the district court will be affirmed.
