Morgan v. Southern Pac. Co.

McFarland, J.

The parties to this action are the same as in Morgan v. Southern Pacific Company, ante, p. 501, this day decided, in which plaintiff recovered a judgment for fifteen thousand dollars for alleged personal injuries received by being thrown from the steps of defendant’s car, which judgment was by this court affirmed. When she fell from the steps of the car she had in her arms her infant daughter, aged about two years; nine days afterwards the child died from an attack of pneumonia; and plaintiff brought this present action to recover damages for the death of said child, upon the theory that the pneumonia was caused by said fall. The jury gave her damages in the amount of twenty thousand dollars, for which sum judgment was rendered; and defendant appeals from the judgment, and from an order denying a motion for a new trial.

The evidence upon the issues of the alleged negligence of defendant’s employees at the time of the accident, and the alleged contributory negligence of plaintiff, was substantially the same as in the- other case; and as to those issues the verdict cannot be disturbed. There was some evidence tending slightly to show that the death of the child was caused by the accident, but it is not necessary to inquire whether or not it was sufficient to establish that fact, because the judgment must clearly be reversed on account of the excessive damages awarded by the the jury.

There was no averment in the complaint of any special damage, and no averment of any damage at all, except the general statement that the child died, “ to the damage of plaintiff in the sum of fifty thousand dollars ”; and there was no evidence whatever introduced or offered upon the subject of damage. The jury therefore had nothing before them upon which to base damages, except the naked fact of the death of a female child two years old; and it is apparent at first blush that “ the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury.”

The main element of damage to plaintiff was the probable value of the services of the deceased until she had attained her majority, considering the cost of her support and maintenance during the early and helpless part of her life. We think that the court erred in charging that “ the jury is not limited by the actual pecuniary injury sustained by hqr by reason of the death of her child.” An action to recover damages for the death of a relative was not known to the common law; it is of recent legislative origin. There are statutes in many of the American states providing for such an action, and it has been quite uniformly held that in such an action the plaintiff does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff on account of the death of the relative; that sorrow and mental anguish caused by the death are not elements of damage; and that nothing can be recovered as a solatium for wounded feelings. The authorities outside of this state are almost unanimous to the point above stated. The following are a few of such authorities: R. R. Co. v. Vandever, 36 Pa. St. 298; Iron Co. v. Rupp, 100 Pa. St. 95; R. R. Co. v. Freeman, 36 Ark. 41; R. R. Co. v. Brown, 26 Kan. 443; 40 Am. Rep. 320; Penn. Co. v. Lilly, 73 Ind. 252; Donaldson v. R. R. Co., 18 Iowa, 280; 87 Am. Dec. 391; R. R. Co. v. Paulk, 24 Ga. 356; R. R. Co. v. Miller, 2 Col. 466; Kesler v. Smith, 66 N. C. 154; Marche. Walker, 48 Tex. 372; R.R. Co. v. Levey, 59 Tex. 563; 46 Am. Rep. 278; James v. Christy, 18 Mo. 162; Hyatt v. Adams, 16 Mich. 180; Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 553; R. R. Co. v. Delaney, 82 Ill. 198; 25 Am. Rep. 308; Blake v. Midland R. R. Co., 18 Q. B. 93.

With respect to the decisions in this state, we do not think those cited by respondent (except one) are, when "closely examined, inconsistent' with the general authorities. Beeson v. G. M. G. M. Co., 57 Cal. 20, is a leading case on the subject, and is cited by all the cases which follow it. In that case the action was brought by the widow for the death of her husband, and the question was, whether or not the lower court erred in allowing evidence of the kindly relations between the plaintiff and the deceased during the lifetime of the latter. The court sustained the ruling of the court below, but clearly upon the ground that those relations could be considered only in estimating the pecuniary loss. The court say: “ It is true that in one sense the value of social relations and of society cannot be measured by any pecuniary standard; .... but in another sense, it might be not only possible, but eminently fitting, that a loss from severing social relations, or from deprivation of society, might be measured, or at least considered, from a pecuniary standpoint..... If a husband and wife were living apart by mutual consent, neither rendering the other assistance or kindly offices, the jury might take into consideration the absence of social relations and the absence of society in estimating the loss' sustained by either from the death of the other. So if the husband and wife had lived together in concord, each rendering kindly offices to the other, such facts might be taken into consideration, not, as the books say, for the purpose of affording solace in money, but for the purpose of estimating pecuniary losses. 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.” A quotation is made from a Penn, sylvania case, where the same rule was applied to the loss of a wife, the court saying that “ certainly the service of a wife is pecuniarily more valuable than that of a mere hireling.” The Beeson case, therefore, does not decide that the jury may depart from a pecuniaay standpoint in assessing damages; it merely holds that in estimating the pecuniary losses of a wife from the death of her husband, they may consider whether or not the deceased was a good husband, able and willing to provide well for his wife. The opinion of the court no doubt goes somewhat further in this direction than the general current of authorities, but it decides nothing more than above stated.

Cook v. Clay Street Hill R. R. Co., 60 Cal. 604, also cited by respondent, decides nothing more than the Bee-son ease.

In McKeever v. Market Street R. R. Co., 62 Cal. 320, the point was not involved; and in Nehrbas v. C. P. R. R. Co., 62 Cal. 320, the point does not appear in any way to have been involved, and the dictum at the close of the opinion, as it refers to the Beeson case, must be held as only intended to go to the length of the latter case.

It is true, however, that in Cleary v. City R. R. Co., 76 Cal. 240, a decision in Department, views were expressed favorable to respondent’s contention. The opinion of the commission in that case was, however, expressly based on Beeson v. G. M. G. M. Co., 57 Cal. 20, and upon, as we have seen, a misunderstanding of that case. There appears to have been no petition for a hearing in Bank. It was stated in that case that there could be a recovery for the “ mental anguish and suffering of the parents ”; but we have been referred to no other case that holds such doctrine. Certainly it was not so held in the Bee-son case. But entirely contrary views were expressed in the latest decision of this court on the subject. (Munro v. Dredging Co., 84 Cal. 515; 18 Am. St. Rep. 248.) In that case, — which was for the death of an adult son, — the lower court had instructed that the jury in estimating the damages might consider “ the sorrow, grief, and mental suffering occasioned by his death to his mother”; and this court held the instruction erroneous, and for that reason reversed the judgment, the court holding that such a rule would afford an “ opportunity to run into wild and excessive verdicts.” The court said: “We are of opinion that the court erred in including in the instruction the words ‘sorrow, grief, and mental suffering occasioned by the death of his son to his mother.’ In thus directing the jury the court fell into error. In our opinion, the damage should have been confined to the pecuniary loss suffered by the mother, and the loss of the comfort, society, support, and protection of the deceased. .... We have found no case in which damages for sorrow, grief, and mental suffering are allowed under any of the statutes.” And further, that the statutory action is a new one, “and not the transfer to the representative of the right of action which the deceased person would have had if he had survived the injury.” The case was decided in Bank. Justice Thornton delivered the opinion, which was concurred in by two other justices, and a fourth justice concurred in the judgment, and must therefore have concurred in the one main reason for which the judgment was reversed; he may not have been ready to say that the “ comfort and society ” of the deceased could be considered. There was only one dissent, but upon what ground does not appear. We think, therefore, that the case is full authority on the main point. At all events, we think that the opinion states the general propositions of law governing the case correctly; although as to one matter it may be misunderstood. The language, “ the loss of the comfort, society, support, and protection of the deceased,” must be held as having been used within the meaning given to it in Beeson v. G. M. G. M. Co., 57 Cal. 20, as herein-before stated, — that is, with reference to the value of the life of the deceased, and the pecuniary loss to the plaintiff caused by the death. The said language would not be correct in any other sense. But in the case at bar the jury were not confined by the instructions to pecuniary loss or any other kind of loss; they were given wide range to run into any wild and excessive verdict which their caprice might suggest.

We do not think that the complaint is defective because it does not specially aver the loss of the services of the deceased; that was a natural and necessary sequence of the death. It was not special damage necessary to be averred.

There is nothing in the point made by respondent that the answer was not verified. Upon that point the court ruled in favor of defendant; and plaintiff is not appealing.

The judgment and order appealed from are reversed, and a new trial ordered.

Sharpstein, J., concurred.