ÆäÀÌÁö À̹ÌÁö
PDF
ePub

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, I guess, than anything else. It was just a notion. She was not earning any money. She was the only housekeeper I had. I depended on her, and her husband was there with us when he was at home. I did not pay her any thing for keeping house for me, and she paid no board. Her only heirs are myself, her mother, and her husband. At the time of the accident my daughter's health was perfect. She had never been sick in her life, and was perfectly strong, healthy, and normal.

[ocr errors]

[8] The general rule in this class of cases is that the damages must be limited strictly to the pecuniary loss to the beneficiaries caused by the wrongful death. Bond v. United Railroads, supra, 159 Cal. 279, 113 Pac. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50. Since the amount recoverable is the pecuniary loss sustained by the beneficiaries of the statute, and since the elements which go to make up the value of a decedent's life to the designated beneficiaries are necessarily personal in each case, in the very nature of things the assessment of damages does not admit of mathematical precision, but is left to the sound discretion of the jury, which, however, is subject to the supervisory power of the court, and must be exercised in accord with the rules established for the assessment of damages in cases of

this character.

nancial value. These are illustrations of direct financial benefits for the loss of which damages may be awarded. In addition to the direct financial benefits which heirs may reasonably expect to receive from the continuance of the life of the deceased, there is that less tangible, and not so immediate, but nevertheless real, pecuniary benefit which often may reasonably be expected from a continuance of the "society, comfort, and protection" of the deceased. Of the principles by which the jury is to be guided cuniary loss arising from the deprivation of in determining the damages due to the pethe "society, comfort, and protection" of a deceased, we shall speak presently.

tation of benefit to be received by the parent would depend upon the ability and will of the adult child to confer the benefit upon the parent. Winnt v. International, etc., R. Co., 74 Tex. 32, 11 S. W. 907, 5 L. R. A. 172. In Calumet, etc., M. Co. v. Gardner, 21 Ariz. 206, 187 Pac. 563, the court says:

[9] There is a distinction between the injuries resulting to a parent from the death of a minor child and those resulting from the death of an adult child. In the case of the former the law gives to the parent the right to the child's services and the proceeds minor would remain in the service of the of his labor; and the probability that the parent during minority, or would have permitted the parent to have the proceeds of his labor, is said to be unimportant. But this rule does not apply in the case of injuries resulting from the death of an adult child, to whose services the parent has no 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 reasonable expectation No damages can be given for the pain or 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 action is given by reason of the death of the victim. Bond v. United Railroads, supra, 159 Cal. 277, 113 Pac. 366, 48 L. R. A. (N. S.) 687, Ann. Cas. 1912C, 50. This pecuniary loss may be a loss arising from a deprivation of something to which the statutory beneficiary I would have been legally entitled if the person had lived, or it may be a pecuniary loss arising from the deprivation of something which, from all the circumstances of the particular case, it could reasonably be expected such beneficiary would have received from the deceased had his life not been takeneven though the obligation resting on the deceased to bestow such benefit may have been but a moral obligation. Sneed v. Marysville Gas., etc., Co., 149 Cal. 710, 87 Pac. 376; Bond v. United Railroads, supra. Thus, 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 contin- ent, since the reasonable expectation may ued to receive from the one who was killed exist, even though the parent, not being in

*

* The ex

"The measure of damages, where the child is an adult, as here, is the reasonable expectation of the parent of pecuniary benefit from the continuance of the life of the child. Dooley v. Seaboard Air Line Ry. Co., 163 N. C. 454, L. R. A. 1916E, 185, and note. pectation must be based upon some fact or child becomes of age, all his earnings and acfacts aside from the relationship. When a cumulations are his to use as he sees fit. The laws of this state do not require an adult child to contribute his services or his earnings to his parents' support."

(209 P.)

need, had never received anything from the fiary, 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 evidence tending to show the competency and the disposition on the part of the child, after reaching his majority to render service to the parent or to contribute to his aid, is generally satisfied by a showing that the deceased child, after having reached his majority, had been accustomed to aid his parent by the rendition of valuable services, performed in recognition of a filial duty and not under contract, or by the contribution of money, or its equivalent, toward the support of his parent. McCord v. Schaff, 279 Mo. 558, 216 S. W. 320; Fordyce v. McCants, supra; Chicago, etc., R. Co. v. Vester, 47 Ind. App. 141, 93 N. E. 1039. See, also, L. R. A. 1916E, 197, 198, note to Dooley v. Seaboard Air Line Ry Co., supra; 17 C. J. 1331; and Parsons v. Easton, 184 Cal. 770, 195 Pac. 419.

[10, 11] Though one of the elements of damage which may be suffered by the parent of an adult child is the present value of such future financial assistance as the parent might reasonably expect from a continuance of the child's life, or the present value of such future services as the parent could reasonably expect to have received, had the child lived, still, in estimating the amount of such damages, it is the expectancy of life of the parent, not the life of the child, which is to be taken into consideration; for, as is usually the case, the child's expectancy of life exceeds that of the parent. Fordyce v. McCants, supra. See, also, Parsons v. Easton, supra. And in estimating the pecuniary value to the parent of the services of an adult child, the jury should take into account the value of any board and lodging or other accommodations which the parent may be furnishing to the adult child, if the latter is living with his parent.

"We have been cited to no case where the law says 'damages may be awarded for the loss of society.' As we read and understand the law, it says directly to the contrary. It is essentially and alone pecuniary loss to the parent which he may recover in damages for the death of his child."

What is meant by the "pecuniary" value of the society, comfort, and protection which may be lost through the untimely death of a spouse, parent, or child is fairly indicated by what was said in the Beeson Case, where the court employed this language:

"The loss of a kind husband may be a considerable pecuniary loss to a wife; she loses his advice and assistance in many matters of domestic economy." 57 Cal. 38. (Italics ours.)

See, also, Parsons v. Easton, supra, 184 Cal. 774, 195 Pac. 419.

[13] Without doubt, the evidence in this case, if tested by the foregoing rules, shows that there was no abuse of discretion in granting a new trial on the ground of excessive damages. There is no evidence that the father had any reasonable expectation of direct financial benefit from a continuance of his daughter's life. In the first place, there is no evidence that the daughter possessed any property or that there was any reasonable probability that she ever would acquire any property. Nor is there any evidence from which it might be inferred that the father would probably have outlived his daughter, if she had not been killed in the accident. On the contrary, the probability is that the daughter, who was strong and healthy and 34 years younger than her father, would have outlived him, but for the fatal accident. There is no evidence, therefore, to justify a reasonable expectation that, 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 "so-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 Cal. 38; Parsons v. Easton, supra. But while loss of society, comfort, and protection may be an element of the injury sustained by the statutory beneficiaries, it is only the pecun209 P.-4

the deceased had continued, she would have bestowed upon her father, or upon any of these plaintiffs, at any time during the remainder of her life, any direct financial assistance in the way of gifts of money or prop

1

erty. 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. of the society, comfort, and protection is the limit of recovery for a loss of that character, and the amount allowed therefor must have some reasonable relation to the pecuniary value shown by the evidence. In this case the father doubtless dearly loved his daughter; but

or assistance. In

The only other possible source of direct financial benefit that the father might reasonably have expected from a continuance of his daughter's life lies in the fact that she kept house for him. But the evidence upon this phase of the case is so extremely fragmentary that it affords no substantial basis "It is pecuniary loss only, and not the loss for the proper estimate of the pecuniary val- of an object of love and affection, that the law 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 The evidence before us does not disclose to show how much of her time the daughter 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. Mayhap 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 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. 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. Upon what theory, then, can it be said that in the daughter's death the mother suffered a deprivation of society, comfort, and pro

We

Unless, therefore, the daughter's society had a very considerable pecuniary value for the father, the award of $8,000 was grossly excessive. It is true that in estimating the dam-tection having for her a pecuniary, as disage which a surviving spouse, parent, or child may have sustained by being deprived of the society, comfort, and protection of the deceased, some latitude must be allowed to the

tinguished from a sentimental, value? We can perceive none whatever.

[14] It is not necessary to determine the reasonableness of the amount which the an

(209 P.)

swers to the special interrogatories show
was intended to be awarded to the husband
-$1,000. Since a verdict against the defend-
ant in this class of cases must be for a single
lump sum, the heirs having but a single joint
cause of action (Robinson v. Western States
Gas. Co., supra), the verdict should be set
aside, and a new trial granted, whenever it
can be seen from answers to special inter-
rogatories that the jury has made an exces-
sive award of damages in their assessment
of the loss sustained by any one or more of
the statutory beneficiaries.

The order granting a new trial is affirmed.
We concur: WORKS, J.; CRAIG, J.

CHARLES NELSON CO. v. PACIFIC
WHARF & STORAGE CO. et al.
(Civ. 3848.)

(District Court of Appeal, Second District, Division 2, California. June 29, 1922. Hearing Denied by Supreme Court Aug. 28, 1922.)

1. Negligence required.

134 (2)—Direct evidence not

Direct and positive evidence of negligence is not required, but circumstances from which it reasonably may be inferred will suffice.

2. Appeal and error 1011(1)When evldence conflicting, question of negligence as proximate cause held for trial court.

When the evidence of negligence as a fact is conflicting, or where it consists of circumstances from which inferences may be drawn for or against the alleged negligence, it is the province of the trial court to determine whether the evidence establishes negligence as the direct and proximate cause of the loss.

3. Warehousemen 34 (7)-Evidence held to establish negligence of wharfinger as proximate cause of fire.

Action by the Charles Nelson Company against the Pacific Wharf & Storage Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

all of Los Angeles, for appellants.
W. N. Goodwin and Goodwin & Morgrage,

Hahn & Hahn, of Pasadena, for respondent.
Turner & Grainger, of Los Angeles, and

FINLAYSON, P. J. Defendants appeal from a judgment in favor of the plaintiff in an action to recover damages for the destruction of certain lumber, the property of plaintiff, which had been stored on the'

wharf of the defendant Pacific Wharf & Storage 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 the exception of the defendant E. A. Mills, the defendants and appellants other than the Pacific Wharf & Storage Company are the holders of stock in that corporation, and as `such are sued upon their stockholder's statutory liability. Mills is not a stockholder, judgment was rendered in his favor, and he is not a party aggrieved. As it is admitted that the defendant stockholders are properly chargeable with their respective proportions of plaintiff's claim for damages, if the defendant corporation is liable, we shall treat the case as though the Pacific Wharf & Storage Company were the sole defendant and appellant.

Defendant, a wharfinger, owns a wharf at East San Pedro-Port Los Angeles. On August 11, 1916, certain lumber, the property of plaintiff, shipped from Oregon, was unloaded from the steamer Daisy Gadsby at East San Pedro and delivered to defendant at the latter's wharf. The lumber had been consigned by plaintiff to a consignee at Miami, Ariz., and was to be forwarded by rail to that consignee by defendant. Through its inability to get the necessary cars, defendant permit. ted the lumber to remain rough piled on its wharf until it was consumed by fire on August 18, 1916. On the day of the fire defendant, through its employee, an experienced engineer, was operating a traveling crane, which was used by it to handle the lumber and other material piled on its wharf. The

Evidence that engineer of wharfinger operated mechanism of an oil-burning engine in such manner that oil in fuel tank overflowed and ignited, setting fire to wharf and burning plaintiff's lumber, deposited thereon, was sufficient to warrant finding that negligence of wharfinger was proximate cause of fire. 4. Warehousemen 34 (7)-Evidence held to establish assumption of liability by wharfinger for loss of lumber deposited, except as attrib-crane and the engine which operated it rested upon and were fastened to an ordinary utable to striking longshoremen. railroad flat car of standard gauge, thus permitting the crane to be run to any spot on defendant's wharf. The engine was operated by steam generated by petroleum, which was conducted by gravity from a fuel tank through a one-inch pipe to an oil burner under the steam boiler. Between the fuel tank and the boiler, which was an upright or ver

In an action by a lumber company against a wharfinger for the destruction by fire of lumber rough piled on its wharves, evidence held sufficient to sustain finding that defendant assumed liability for loss, except that which might be directly attributable to striking longshoremen.

Appeal 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
inches above the floor of the flat car. In the
top of the fuel tank was a circular hole 18
inches in diameter, through which the fuel
oil was replenished when necessary. Inside
the fuel tank, and connected with the boiler,
was a steam coil, by means of which the
petroleum in the fuel tank could be heated
when it was too thick to run readily to the
burner. In this steam coil was a cut-off
valve, which, when closed,
steam from entering the coil.
er for the 18-inch hole in the
tank was a loose, flat, circular piece of iron
a little larger than the hole. The pipe to the
steam coil in the fuel tank passed through
this iron covering in such a manner as to act
as a hinge on which the cover could be
turned from side to side without falling off,
thus permitting access to the inside of the
tank. Under the boiler of the engine was a
fire box 48 inches in diameter, lined with
fire brick. Its door, oval-shaped, was 12
inches by 9 inches. The burner in the fire
box, at the end of a half-inch pipe which en-
tered the fire box through a small hole in
the door, was about 2 feet from the door.

ran therefrom upon the wharf, which thereby caught fire; and that the fire of the burning wharf, spreading to plaintiff's lumber, burned it, and the destruction of the lumber was the direct result of defendant's negligence.

About the 1st of June, 1916, the stevedores that is, the men, other than the sailors, who were employed by and worked upon the vessels, unloading the lumber therefrom, but prevented the who had nothing to do with the lumber aftThe only cover it was unloaded and placed upon the top of the fuel wharf-went on a strike. There began, at the same time, a strike of the longshoremen; that is, the men who worked upon the dock or wharf as lumber handlers, and attended to the handling and moving of the lumber after it was unloaded from the vessels, and who only worked upon the wharf and not. upon the vessels. The longshoremen who handled material for the defendant were its employees. This strike of the longshoremen was called off August 1, 1916, and the men voluntarily returned to work on August 3, 1916. The strike of the stevedores continued for a long time thereafter-until long after the burning of plaintiff's lumber. By reason of the situation created by the strike of these two classes of laborers, defendant, at the beginning of the strike in the early part of June, had a verbal agreement or understanding with each of its customers, including the plaintiff here, whereby it sought to limit its liability as a wharfinger. The exact nature of the verbal agreement between defendant and this plaintiff is sharply disputed; defendant claiming for it a much broader scope than is conceded by the plaintiff or found by the trial court.

The engineer in charge of the crane-and his is the only testimony upon the subjecttestified that just before noon of August 18, 1916, he filled the fuel tank with petroleum from a storage tank on the premises; that he filled the fuel tank to within 6 or 8 inches from its top; that he noticed nothing unusual about the oil; that after filling the fuel tank he ran the crane back upon the wharf and ate his lunch; that he operated the crane for about an hour after lunch without noticing anything unusual; that after operating it for about an hour he discovered a fire on the platform of the flat car, covering a space about a foot square immediately under the fuel tank; that he instantly shut off the steam and the oil that was entering the feed pipe to the fire box, and jumped down onto the wharf; that he then looked up and saw the oil running over the fuel tank; that he saw it coming out of the hole in the top of the fuel tank and running down over the side of that tank to the platform of the crane. The engineer further testified that he could not recall having turned any steam that day into the steam coil in the fuel tank.

Plaintiff alleged, and the court found, that defendant negligently failed to provide and use upon the fuel oil tank suitable, proper, and necessary safety devices; that it negligently and carelessly operated the crane and fuel tank without such safety devices; that it operated the crane and used the fuel tank so negligently and carelessly that the fuel oil flooded out of the 18-inch manhole in the top of the tank and ran down the side thereof onto the floor of the crane near the fire box, where it was ignited, and the flames

As an affirmative defense, defendant set up in an amendment to its answer that the lumber in question was discharged from the vessel and piled on the wharf under an express agreement between it and plaintiff that it was to be so discharged and piled "at the sole risk of plaintiff from loss of said lumber or damage thereto arising from fire or theft resulting from any cause whatsoever, so long as said lumber or any part thereof remained on said wharf." The trial court found that plaintiff did not contract to assume all loss of or damage to the lumber arising from fire resulting from any cause whatever. More specifically, the findings are that defendant's business as a wharfinger was interfered with by the strike of the longshoremen; that about the 1st of June, and while plaintiff was discharging certain lumber from the steamer Mukelteo, defendant informed plaintiff that it was having a strike, and that, owing to its inability to move lumber on account of the longshoremen's strike, it would expect plaintiff to assume any loss by fire or damage to material put on the wharf by plaintiff during that strike; that plaintiff understood, from the

« ÀÌÀü°è¼Ó »