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come back. It was not steady. She didn't de-, financial assistance, or services having a fipend upon that at all. It was more a fancy, Inancial value. These are illustrations of guess, than anything else. It was just a no- direct financial benefits for the loss of which tion. She was not earning any money. She damages may be awarded. In addition to was the only housekeeper I had. I depended the direct financial benefits which heirs may on her, and her husband was there with us reasonably expect to receive from the conwhen he was at home. I did not pay her any; tinuance of the life of the deceased, there thing for keeping house for me, and she paid no board. Her only heirs are myself, her moth- is that less tangible, and not so immediate, er, and her husband. At the time of the acci- but nevertheless real, pecuniary benefit dent my daughter's health was perfect. She which often may reasonably be expected had never been sick in her life, and was per- from a continuance of the “society, comfort, fectly strong, healthy, and normal.

and protection" of the deceased. Of the [8] The general rule in this class of cases in determining the damages due to the pe

principles by which the jury is to be guided is that the damages must be limited strictly cuniary loss arising from the deprivation of to the pecuniary loss to the beneficiaries the society, comfort, and protection” of a caused by the wrongful death. Bond v. United Railroads, supra, 159 Cal. 279, 113 deceased, we shall speak presently.

[9] There is a distinction between the inPac. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50. Since the amount recoverable is juries resulting to a parent from the death the pecuniary loss sustained by the beneti- of a minor child and those resulting from ciaries of the statute, and since the elements the death of an adult child. In the case of which go to make up the value of a deced- the former the law gives to the parent the ent's life to the designated beneticiaries are of his labor; and the probability that the

right to the child's services and the proceeds necessarily personal in each case, in the very minor would remain in the service of the nature of things the assessment of damages does not admit of mathematical precision, parent during minority, or would have perbut is left to the sound discretion of the mitted the parent to have the proceeds of jury, which, however, is subject to the su

his labor, is said to be unimportant. But pervisory power of the court, and must be this rule does not apply in the case of inexercised in accord with the rules established juries resulting from the death of an adult for the assessment of damages in cases of child, to whose services the parent has no this character.

legal right. In a suit to recover damages The rules applicable to the instant case occasioned by the death of an adult child may be formulated substantially as follows: the plaintiff should show that there was a No damages can be given for the pain or

reasonable expectation that the parent anguish suffered by the person who is killed; would receive a benefit had the life of such the damages, as we have stated, being limit- child continued; and in the absence of a legal ed to the pecuniary loss suffered by the per

right to his services, such reasonable expecson or persons for whose benefit the right of tation of benefit to be received by the parent action is given by reason of the death of the would depend upon the ability and will of victim. Bond v. United Railroads, supra, 159 the adult child to confer the benefit upon Cal. 277, 113 Pac. 366, 48 L. R. A. (N. S.) 687, the parent. Winnt v. International, etc., R. Ann. Cas. 1912C, 50. This pecuniary loss Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. may be a loss arising from a deprivation of 172 In Calunet, etc., M. Co. v. Gardner, 21 something to which the statutory beneficiary Ariz. 206, 187 Pac. 563, the court says: - would have been legally entitled if the per- "The measure of damages, where the child son had lived, or it may be a pecuniary loss is an adult, as here, is the reasonable expectaarising from the deprivation of something tion of the parent of pecuniary benefit from the which, from all the circumstances of the par. continuance of the life of the child. Dooley v. ticular case, it could reasonably be expected Seaboard Air Line Ry. Co., 163 N. C. 454, L. such beneficiary would have received from R. A. 1916E, 185, and note. the deceased had his life not been taken-pectation must be based upon some fact or even though the obligation resting on the child becomes of age, all his earnings and ac

facts aside from the relationship. When a deceased to bestow such benefit may have cumulations are his to use as he sees fit. The been but a moral obligation. Sneed v. Marys- laws of this state do not require an adult child ville Gas., etc., Co., 149 Cal. 710, 87 Pac. to contribute his services or his earnings to his 376; Bond v. United Railroads, supra. Thus, parents' support." there might be a reasonable expectation that, if the life of a deceased had continued, he See, also, Fordyce v. McCants, 51 Ark. 509, might have accumulated a greater estate, 11 S. W. 694, 4 L. R. A. 296, 14 Am. St. Rep. and that the increased estate would have 69; Hines v. Nicols (Ind. App.) 130 N. E. been inherited by the statutory beneficiaries 140, and 17 C. J. title "Death,” par. 202. as his heirs; or there might be a reasonable And while it may not always be necessary expectation that, if the life of a deceased to show that the adult child, after coming had not been taken, the statutory benefi- of age, had ever done anything for his parciaries, or some of them, would have continent, since the reasonable expectation may ued to receive from the one who was killed exist, even though the parent, not being in

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The ex

(209 P.) aeed, had never received anything from the , iary, and not the sentimental, value of such child after the latter had reached majority loss which may be taken into consideration (Dooley v. Seaboard Air Line Ry. Co., 163 in the assessment of damages. Nothing can N. C. 454, 79 S. E. 970, L. R. A. 1916E, 185), be recovered as a solatium for wounded feelnevertheless, to entitle the parent to recover ings. If the society of the deceased was of for the death of an adult child, there must be no financial value to the statutory benefisome evidence showing, to a reasonable cer- ciaries, no damages can be awarded for its tainty, a pecuniary loss, and, with some rea- loss. Dickinson v. Southern Pacific Co., 172 sonable probability, the amount thereof; that Cal. 730, 731, 158 Pac. 183. In Wales v. is, there must be evidence showing the com- Pacific Electric M. Co., 130 Cal. 523, 62 Pac. petency and disposition of the adult child to 933, the court, holding that damages may not respond to the parent's needs. Fordyce v. be awarded for the mere loss of society not McCants, supra; Andrezejewski v. North- involving some element of actual pecuniary western Fuel Co., 158 Wis. 170, 148 N. W. loss, employed this language: 37. The rule that there must be some evi

“We have been cited to no case where the dence tending to show the competency and law says 'damages may be awarded for the loss the disposition on the part of the child, of society. As we read and understand the after reaching his majority to render serv-law, it says directly to the contrary. It is esice to the parent or to contribute to his aid, sentially and alone pecuniary loss to the paris generally satisfied by a showing that the ent which he may recover in damages for the deceased child, after having reached his ma- death of his child.” jority, had been accustomed to aid his parent by the rendition of valuable services, per: of the society, comfort, and protection which

What is meant by the “pecuniary" value formed in recognition of a filial duty and not under contract, or by the contribution of may be lost through the untimely death of a

spouse, parent, or child is fairly indicated money, or its equivalent, toward the support of his parent. McCord v. Schatr, 279 by what was said in the Beeson Case, where

the court employed this language: Mo. 558, 216 S. W. 320; Fordyce v. McCants, supra; Chicago, etc., R. Co. v. Vester 47 "The loss of a kind husband may be a considInd. App. 141, 93 N. E. 1039. See, also, L. R. erable pecuniary loss to a wife; she loses his A. 1916E, 197, 198, note to Dooley v. Sea- advice and assistance in many matters of doboard Air Line Ry Co., supra; 17 C. J. 1331; mestic economy.” 57 Cal. 38. (Italics ours.) and Parsons v. Easton, 184 Cal. 770, 195 Pac. See, also, Parsons v. Easton, supra, 184 419.

Cal. 774, 195 Pac. 419. [10, 11] Though one of the elements of

[13] Without doubt, the evidence in this damage which may be suffered by the par- case, if tested by the foregoing rules, shows ent of an adult child is the present value of that there was no abuse of discretion in such future financial assistance as the par- granting a new trial on the ground of exent might reasonably expect from a contin- cessive damages. There is no evidence that uance of the child's life, or the present value the father had any reasonable expectation of such' future services as the parent could of direct financial benefit from a continuance reasonably expect to have received, had the of his daughter's life. In the first place, child lived, still, in estimating the amount there is no evidence that the daughter posof such damages, it is the expectancy of life sessed any property or that there was any of the parent, not the life of the child, which reasonable probability that she ever would is to be taken into consideration; for, as is acquire any property. Nor is there any eviusually the case, the child's expectancy of dence from which it might be inferred that life exceeds that of the parent. Fordyce v. the father would probably have outlived his McCants, supra. See, also, Parsons v. Eas- daughter, if she had not been killed in the ton, supra. And in estimating the pecuniary accident. On the contrary, the probability is value to the parent of the services of an that the daughter, who was strong and adult child, the jury should take into ac- healthy and 34 years younger than her facount the value of any board and lodging ther, would have outlived him, but for the or other accommodations which the parent fatal accident. There is no evidence, theremay be furnishing to the adult child, if the fore, to justify a reasonable expectation that, latter is living with his parent.

if the life of the deceased had continued, any [12) Besides the pecuniary loss arising pecuniary advantage would have accrued to from the deprivation of direct financial as the father, or, for that matter, to any of sistance or from the deprivation of services, these plaintiffs, as an heir or possible there may be, as we have said, a pecuniary legatee or devisee of the deceased. In the loss arising from the deprivation of the "80- second place, there is no evidence to warrant ciety, comfort, and protection” of the de- a reasonable expectation that, if the life of cedent. Beeson v. Green Mountain Co., 57 the deceased had continued, she would have Cal. 38; Parsons v. Easton, supra. But while bestowed upon her father, or upon any of loss of society, comfort, and protection may these plaintiffs, at any time during the rebe an element of the injury sustained by the mainder of her life, any direct financial asstatutory beneficiaries, it is only the pecun- sistance in the way of gifts of money or property. She was not earning any money, and discretion of the jury; for it is not possible there is nothing to show that there was any to measure in exact terms of money the dam. probability that she ever would be a wage- age resulting from a loss of that character. earner or the recipient of an income. Nor But it must never be forgotten that, in fixing is there any evidence that she ever was ac- the amount, the jury is always bound by the customed to giving money or making pres- fundamental rule that the pecuniary value ents to any of her family.

209 P.4

of the society, comfort, and protection is the The only other possible source of direct limit of recovery for a loss of that character, financial benefit that the father might rea- and the amount allowed therefor must have sonably have expected from a continuance some reasonable relation to the pecuniary of his daughter's life lies in the fact that she value shown by the evidence. In this case kept house for him. But the evidence upon the father doubtless dearly loved his daughthis phase of the case is so extremely frag- ter; butmentary that it affords no substantial basis for the proper estimate of the pecuniary val- of an object of love and affection, that the law

"It is pecuniary loss only, and not the loss ue of the daughter's services as a housekeep- recognizes as ground for allowing damages to er. There is no showing as to the size of the the heirs of one whose death has been caused house of which she took care. So far as the by the negligence of a third person." Parsons evidence discloses, the house may have con- v. Easton, supra. tained few or many rooms. There is nothing to show how much of her time the daughter

The evidence before us does not disclose gave to her household duties. It does not any circumstance indicating that the society appear whether she cooked all or any of her and comfort of this married daughter was father's meals. No showing was made re- of any pecuniary advantage to the father, or specting the contemplated duration of the that there was any reasonable probability arrangement. The deceased, as a married that it would be pecuniarily valuable in the woman, was in duty bound to follow her hus- future. There is nothing to show that by band to any reasonable fit abode which he reason of superior business ability, or bemight select. Maybap the arrangement to cause of life's experiences, this young woman which the father testified was but temporary. had become qualified to give her father valFor aught that appears to the contrary, the uable business advice or assistance. in deceased and her husband may have con- short, there is nothing to show that the templated a change of residence. In these daughter's society had for the father any matters the jury may not be permitted to particular financial value. Eliminating, as roam the field of fancy, and draw upon their we must, any consideration of the grief and imagination for facts not disclosed by the mental suffering occasioned to the father by evidence. The several elements of damage, his daughter's death, it is impossible to conwhere they exist, must be based on facts fur ceive how the loss of the society and comfort nished by the evidence, and not upon surmise of the deceased could have had for the faand conjecture. Moreover, the food and lodg-ther any appreciable money value. ing which the father furnished his daughter The evidence is likewise lacking in definite during all of the time that she was in his substance with respect to the sum which the house, together with the food and lodging jury assessed in favor of the mother. We which was furnished the husband during a are utterly unable to perceive upon what part of that time, had some financial value. theory it was supposed that the mother sufFor aught that appears to the contrary, what fered a loss of $1,000. There is no evidence the daughter received from the father in the that her daughter ever gave her any sums way of food and other accommodations may of money. There is nothing to show that the have equaled or exceeded in value all that mother ever received, or that she had any she rendered in return in the way of house. reasonable expectation of ever receiving, any keeping. It is quite possible that it might financial aid or personal services from the have been more profitable for the father, daughter subsequently to the latter's marviewing the situation from a purely financial riage. And though the deprivation of socistandpoint, to have hired an experienced pro- ety, comfort, and protection is an element of fessional housekeeper. These considerations loss, it is, as stated, an element of damage will suffice to disclose how far short the only when it has a pecuniary value. Here evidence falls of showing that the father's the mother and father had lived apart for expectation of a benefit from his daughter's 15 years, and the daughter, at the date of services was worth anything like $8,000. her death, was living in the father's house.

Unless, therefore, the daughter's society had Upon what theory, then, can it be said that a very considerable pecuniary value for the in the daughter's death the mother suffered father, the award of $8,000 was rossly exces- a deprivation of society, comfort, and prosive. It is true that in estimating the dam- tection having for her a pecuniary, as disage which a surviving spouse, parent, or child tinguished from a sentimental, value? We may have sustained by being deprived of the can perceive none whatever. society, comfort, and protection of the de- [14] It is not necessary to determine the ceased, some latitude must be allowed to the reasonableness of the amount which the an(209 P.) swers to the special interrogatories show, Action by the Charles Nelson Company, was intended to be awarded to the husband against the Pacific Wharf & Storage Com-$1,000. Since a verdict against the defend- pany and others. From a judgment for ant in this class of cases must be for a single plaintiff, defendants appeal. Affirmed. lump sum, the heirs having but a single joint cause of action (Robinson v. Western States all of Los Angeles, for appellants.

W. N. Goodwin and Goodwin & Morgrage, Gas. Co., supra), the verdict should be set aside, and a new trial granted, whenever it Hahn & Hahn, of Pasadena, for respondent.

Turner & Grainger, of Los Angeles, and can be seen from answers to special interrogatories that the jury has made an exces

FINLAYSON, P. J. Defendants appeal sive award of damages in their assessment from a judgment in favor of the plaintiff in of the loss sustained by any one or more of an action to recover damages for the dethe statutory beneficiaries.

struction of certain lumber, the property of The order granting a new trial is affirmed. plaintiff, which had been stored on the

wharf of the defendant Pacific Wharf & StorWe concur: WORKS, J.; CRAIG, J.

age Company, a corporation, and was destroyed by fire, caused, it is alleged, by the negligence of the Pacific Wharf & Storage Company, hereafter referred to simply as

the "defendant" or as the "appellant." With CHARLES NELSON CO. V. PACIFIC the exception of the defendant E. A. Mills, WHARF & STORAGE CO. et al.

the defendants and appellants other than the (Civ. 3848.)

Pacific Wharf & Storage Company are the (District Court of Appeal, Second District, Di-holders of stock in that corporation, and as vision 2, California. June 29, 1922. Hear- such are sued upon their stockholder's statuing Denied by Supreme Court Aug. 28, 1922.) tory liability. Mills is not a stockholder,

judgment was rendered in his favor, and he 1. Negligence on 134(2)-Direct evidence not is not a party aggrieved. As it is admitted required.

that the defendant stockholders are properly Direct and positive evidence of negligence chargeable with their respective proportions is not required, but circumstances from which of plaintiff's claim for damages, if the deit reasonably may be inferred will suffice.

fendant corporation is liable, we shall treat 2. Appeal and error Om 1011(1) - When evi- the case as though the Pacific Wharf &

dence conflicting, question of negligence as Storage Company were the sole defendant proximate cause held for trial court.

and appellant. When the evidence of negligence as a fact Defendant, a wharfinger, owns a wharf at is conflicting, or where it consists of circum- East San Pedro–Port Los Angeles. On Austances from which inferences may be drawn gust 11, 1916, certain lumber, the property of for or against the alleged negligence, it is the plaintiff, shipped from Oregon, was unloaded province of the trial court to determine wheth- from the steamer Daisy Gadsby ‘at East San er the evidence establishes negligence as the Pedro and delivered to defendant at the latdirect and proximate cause of the loss.

ter's wharf. The lumber had been consigned 3. Warehousemen Cw34(7)-Evidence held to by plaintiff to a consignee at Miami, Ariz.,

establish negligence of wharfinger as proxi- and was to be forwarded by rail to that conmate cause of fire.

signee by defendant. Through its inability Evidence that engineer of wharfinger operat- to get the necessary cars, defendant permit. ed mechanism of an oil-burning engine in such ted the lumber to remain rough piled on its manner that oil in fuel tank overflowed and wharf until it was consumed by fire on Auignited, setting fire to wharf and burning plaintiff's lumber, deposited thereon, was suffi- gust 18, 1916. On the day of the fire defendcient to warrant finding that negligence of ant, through its employee, an experienced en. wharfinger was proximate cause of fire.

gineer, was operating a traveling crane,

which was used by it to handle the lumber 4. Warehousemen 34(7)-Evidence held to and other material piled on its wharf. The establish assumption of liability by wharfinger crane and the engine which operated it rest- ' for loss of lumber deposited, except as attrib- ed upon and were fastened to an ordinary utable to striking longshoremen.

railroad flat car of standard gauge, thus perIn an action by a lumber company against a wharfinger for the destructior by fire of mitting the crane to be run to any spot on

defendant's wharf. The engine was operatlumber rough piled on its wharves, evidence held sufficient to sustain finding that defendant ed by steam generated by petroleum, which assumed liability for loss, except that which was conducted by gravity from a fuel tank might be directly attributable to striking long-through a one-inch pipe to an oil burner unshoremen.

der the steam boiler. Between the fuel tank

and the boiler, which was an upright or verAppeal from Superior Court, Los Angeles tical boiler, was a space of about 8 inches. County; Leslie R. Hewitt, Judge.

The fuel tank was 24 inches wide, 42 inches For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

deep, and 66 Inches long. Its bottom was 36 , ran therefrom upon the wharf, which thereinches above the floor of the flat car. In the by caught fire; and that the fire of the burntop of the fuel tank was a circular hole 18 ing wharf, spreading to plaintiff's lumber, inches in diameter, through which the fuel burned it, and the destruction of the lumber oil was replenished when necessary. Inside was the direct result of defendant's neglithe fuel tank, and connected with the boiler, gence. was a steam coil, by means of which the About the 1st of June, 1916, the stevedores petroleum in the fuel tank could be heated that is, the men, other than the sailors, when it was too thick to run readily to the who were employed by and worked upon the burner. In this steam coil was a cut-off vessels, unloading the lumber therefrom, but · valve, which, when closed, prevented the who had nothing to do with the lumber aftsteam from entering the coil. The only cover it was unloaded and placed upon the er for the 18-inch hole in the top of the fuel wharf-went on a strike. There began, at • tank was a loose, flat, circular piece of iron the same time, a strike of the longshoremen; a little larger than the hole. The pipe to the that is, the men who worked upon the dock or steam coil in the fuel tank passed through wharf as lumber handlers, and attended to this iron covering in such a manner as to act the handling and moving of the lumber aftas a hinge on which the cover could be er it was unloaded from the vessels, and turned from side to side without falling off, who only worked upon the wharf and not. thus permitting access to the inside of the upon the vessels. The longshoremen who tank. Under the boiler of the engine was a handled material for the defendant were its fire box 48 inches in diameter, lined with employees. This strike of the longshoremen fire brick. Its door, oval-shaped, was 12 was called off August 1, 1916, and the men inches by 9 inches. The burner in the fire voluntarily returned to work on August 3, box, at the end of a half-inch pipe which en- 1916. The strike of the stevedores continued tered the fire box through a small hole in for a long time thereafter-until long after the door, was about 2 feet from the door. the burning of plaintiff's lumber. By reason

The engineer in charge of the crane and of the situation created by the strike of these his is the only testimony upon the subject-two classes of laborers, defendant, at the betestified that just before noon of August 18, ginning of the strike in the early part of 1916, he filled the fuel tank with petroleum June, had a verbal agreement or understandfrom a storage tank on the premises; that ing with each of its customers, including the he filled the fuel tank to within 6 or 8 inch- plaintiff here, whereby it sought to limit its es from its top; that he noticed nothing un- liability as a wharfinger. The exact nature usual about the oil; that after filling the of the verbal agreement between defendant fuel tank he ran the crane back upon the and this plaintiff is sharply disputed; de wharf and ate his lunch; that he operated fendant claiming for it a much broader scope the crane for about an hour after lunch with than is conceded by the plaintiff or found by out noticing anything unusual; that after the trial court. operating it for about an hour he discovered As an affirmative defense, defendant set up a fire on the platform of the flat car, cover- in an amendment to its answer that the luming a space about a foot square immediately ber in question was discharged from the vesunder the fuel tank; that he instantly shut sel and piled on the wharf under an express off the steam and the oil that was entering agreement between it and plaintiff that it the feed pipe to the fire box, and jumped was to be so discharged and piled “at the down onto the wharf; that he then looked sole risk of plaintiff from loss of said lumup and saw the oil running over the fuel ber or damage thereto arising from fire or tank; that he saw it coming out of the hole theft resulting from any cause whatsoever, in the top of the fuel tank and running down so long as said lumber or any part thereof over the side of that tank to the platform of remained on said wharf." The trial court the crane. The engineer further testified found that plaintiff did not contract to asthat he could not recall having turned any sume all loss of or damage to the lumber steam that day into the steam coil in the arising from fire resulting from any cause fuel tank.

whatever. More specifically, the findings are Plaintiff alleged, and the court found, that that defendant's business as a wharfinger defendant negligently failed to provide and was interfered with by the strike of the longuse upon the fuel oil tank suitable, proper, shoremen; that about the 1st of June, and and necessary safety devices; that it neg- while plaintiff was discharging certain lumligently and carelessly operated the crane ber from the steamer Mukelteo, defendant and fuel tank without such safety devices; informed plaintiff that it was having a that it operated the crane and used the fuel strike, and that, owing to its inability to tank so negligently and carelessly that the move lumber on account of the longshorefuel oil flooded out of the 18-inch manhole in men's strike, it would expect plaintiff to asthe top of the tank and ran down the side sume any loss by fire or damage to material thereof onto the floor of the crane near the put on the wharf by plaintiff during that fire box, where it was ignited, and the flames strike; that plaintiff understood, from the

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