J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) online

. (page 28 of 192)
Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 28 of 192)
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The instruction in question was not
considered by the supreme court.
Its correctness would undoubtedly
depend upon the sufBciency of the
evidence to show a probability of in-
crease or decrease in earning capac-


equally applicable in an action by the employee for personal in-

The Supreme Court of Kentucky held improper an instruc-
tion that the jury were to award such sum as "will fairly and
reasonably compensate him [the plaintiff] for injuries to his
person" on the ground that the words "for injuries to his per-
son" should have been omitted, the court saying that "what
would compensate a man for losing both of his hands is too un-
certain to be submitted to a jury." ^ x\n instruction authoriz-
ing a recovery "for injuries to his [plaintiff's] person and for
physical and mental suffering, if any of either, suffered on ac-
count of said injuries, and for permanent injury to him, if i ny,
lessening his power to earn money" has been held erroneous as
allowing the recovery of double damages, the court saying:
"Where a person is permanently injured, he may in addition
to special damages, which must be alleged and proved, recover
for the physical and mental suffering, and the permanent reduc-
tion of his power to earn money. In other words, the injuries
to his person are measured by his pain and suffering, and the
permanent reduction of his power to earn money. It is not
contemplated that he shall receive damages 'for injuries to his
person,' and in addition thereto damages for physical and men-
tal suffering, and for the permanent reduction of his power to
earn money. To do so is necessarily to allow double damages." ^

An instruction that the jury may consider the plaintiff's loss
of time with reference to his ability to earn money, the im-
pairment of his capacity to earn money, whether temporary or
pe:rmanent, disfigurement, and pain past or reasonably certain
to be suffered in the future correctly states the law.' An in-
struction that damages could not be recovered in excess of the
sum claimed in the declaration is not prejudicial to the defend-
ant, the court having also advised the jury that the sum claimed

6 Nashville, C. & St. L, R. Co. v. 7 Southwestern Brewery & Ice Co.

Banks, 156 Ky. 609 ^. Schmidt, 220 U. S. 162, 57 L. ed.

6 Nashville, C. & St. L, Ry. v.
Henry, 158 Ky. 88. 170.


should not be taken as a criterion to act upon, but that it was
only a limit beyond which they could not go.*

Where the court explicitly required the jury to find that
there must be a proximate and causal relation between the dam-
ages and the negligence of the defendant, the fact that it re-
ferred to the amount sued for as the maximum amount which
could be allowed is not erroneous.^

As in other actions the amount of the damages must depend
in a large measure upon the good sense and sound judgment of
the jury, upon all the facts and circumstances of the particular
case. There can be no fixed measure of compensation for the
pain and anguish of body and mind, nor for the loss of time or
the permanent injury to health and body.^°

Neither the particular occupation in which the plaintiff Avas
employed, nor the necessity for abandoning same need be
averred to admit evidence thereof. Consequently if the plain-
tiff was engaged in business in addition to his employment,
which on account of his injury he is required to abandon a re-
covery may be had although not specifically averred.'^^ Evi-
dence of impotency as the result of the injury is admissible
although not specially pleaded.^^

§ 1332. Damages in case of death; beneficiaries. The act
provides that in case of the death of an employee from an in-
jury sustained while he was engaged in interstate commerce,
the railroad company shall be liable "to his personal representa-
tive for the benefit of his widow and children, if any, if none,
then for his parents, if none, then for his next of kin dependent
upon him."

The supreme court has construed this provision to require
that beneficiaries within any of the designated classes must
have been dependent upon the deceased and that the words

8 McDermott v. Severe, 202 U. S. ed. 1061 ; Opsahl v. Northern Pac.
600, 50 L. ed. 11G2. r, Co., 78 Wash. 197, 138 Pac. 681.

9 Chesapeake & 0. Ry. Co. v. Carn- ^ ^^^^ ^ ^eroy, 20 How. 34, 15
ahan, 241 U. S. 241, 60 L. ed.

10 Illinois Cent. R. Co. v. Barron,

L. ed. 813.

5 Wall. 90, 18 L. ed. 591; The "City 12 Denver & R. G. R. Co. v. Har-

of Panama," 101 U. S. 453, 25 L. ris, 122 U. S. 597, 30 L. ed. 1140.


"dependent upon liim" do not refer to the next of kin alone. ^^
In other words this provision has been construed as though it
read : The railroad company shall be liable to his personal rep-
resentative for the benefit of his widow and children dependent
upon him, if any, if none, then for his parents dependent upon
him, if none, then for his next of kin dependent upon him.

The statute plainly intends that the beneficiaries shall take in
the order named, and each class takes in the order named to the
exclusion of the other ; ^* hence parents of an employee are not
beneficiaries where there is a sui-viving widow.^^ To be de-
pendents within the act the beneficiaries mugt at the time of the
death of the decedent, have been dependent upon him for sub-
stantial if not entire support.^* There must be some reasonable
expectation of pecuniary assistance or support, of which the
beneficiaries were deprived," hence a married sister provided
for by her husband is not "dependent" upon her brother merely
because he contributed money to her in return for board and
lodging, which was approximately worth the amount con-
tributed ; " nor can an adult sister claim to be dependent upon
a brother whose wages were barely sufficient for his own main-
tenance/^ Self-supporting adult children, who contributed to


13 Gulf, C. & S. F. R. Co. V. Mc- Northern Pac. R. Co., 85 Wash. 90.
Ginnis, 228 U. S. 173, 57 L. ed. 785, Evidence that decedent, who wa.-?
3 X. C. C. A. 806, rev'g — Tex. Civ. unmarried, and whose parents were
App. — , 147 S. W. 1188. Contra, dead, had contributed to his adult
MolTett V. Baltimore & 0. R. Co., sister and her minor child held sul-
13.) C. C. A. 607, 220 Fed. 39. ficient to form the basis of a recov-

14 Leyhan v. Leyhan, 47 Ind. App. g^y j^ their behalf. Bruckshaw v.
280, an action which did not arise Chicago, R. I. & P. Ry. Co., — Iowa

— , 155 N. W. 273.

18 Southern Ry. Co. v. Vessell,
Ala. — , 68 So. 336.

under the act.

15 St. Louis, S. F. & T. R. Co. v.
Seale, 229 U. S. 156, 57 L. ed. 1129,

rev'g — Tex. Civ. App. — , 148 S. ,„^ „. ^ , . ^ ^

W. 1099, 3 X. C. C. A. 800; Tavlor ^« Collins v. Pennsylvania R. Co.,

V. Taylor, 232 U. S. 363, 58 L." ed. ^^^ ^- ^- ^PP" ^^^- 452- In this

638, 6 N. C. C. A. 436, rev'g 144 ^^^« *h« decedent was eighteen

jf Y Add Div 634 years of age and earned but five or

16 Southern Ry. Co. v. Vessell, — six dollars per week. He and an
\la. 68 So. 336. adult sister earning $15 per week

17 Michigan Cent. R. Co. v. Vree- pooled their wages and out of tho
land, 227 U. S. 59, 57 L. ed. 417, sum total supported themselves and
rev'g 189 Fed. 495; Fogarty v. an invalid sister.

5094: SUTHERLAND ON DxiMAGES. [§ 1332

the family expenses cannot be considered dependents.^" The
mere physical disability of a brother does not render him a de-
pendent in the absence of evidence showing reasonable gTound
for belief that deceased would have contributed to his support.^^

It has been held that pecuniary loss by the parents from the
death of an adult son was sufficiently shown where the evidence
disclosed that the parents were in need of financial assistance;
that the deceased had during his minority and for two years in
addition given such aid both in money and in work, and that
he had the disposition to continue the same as evidenced by the
contribution of a portion of his wages.^^ In an action in be-
half of the surviving mother of the decedent, proof that she had
a reasonable expectation of pecuniary benefit from a continu-
ance of the decedent's life is sufficient.^^

The period of dependency of a minor child, under ordinary
circumstances ends upon the attainment of his majority, hence
mere expectation founded upon the expressed wishes of the
father to give him an education which would necessarily con-
tinue for a considerable period after he became of age, cannot
form the basis of a claim of pecuniary loss as to the time fol-
lowing his attainment of majority.^* The pecuniary loss of a
mentally defective child growing out of the death of its father
is necessarily greater than the loss to children not so af-

The action is not for the equal benefit of each of the surviving
relatives in whose behalf the suit is brought, and though the
judgment may be for a gross amount, the interest of each bene-
ficiary must be measured by his or her individual pecuniary

20 Houston & T. C. R. Co. V. Walk- 24 McGarvey's Guardian v. Mc-

er, — Tex. — , 173 S. W. 208. Garvey's Adm'r, 163 Ky. 242.

21 Jones V. Charleston & W. C. R.
Co., 98 S. C. 197.

22 Lundeen v. Great Northern R.

25 Louisville & X. R. Co. v. Stew-
art's Adm'x, 163 Ky. 823, aflf'd 241
U. S. 261, 60 L. ed. — , where a
verdict for $4,469 in favor of a
Co., 128 Minn. 332. ^^j^-j^ g-^ ^^^^.g ^j^^ suffering from

23Moffett V. Baltimore & 0. R. ^ mental affliction was held not to
Co., 135 C. C. A. 607, 220 Fed. 39. be excessive.


loss.^^ The interest of a beneficiary who dies before the re-
covery of judgment will not survive.^'

The recovery by the personal representatives is in trust for
the desigiiated beneficiaries.^* Where the injuries to an em-
ployee resulted in his death the original act of 1908 created a
new and independent cause of action in favor of his personal
representatives for the pecuniary loss suffered by the beneficia-
ries on account of such death.^'

Does the physical existence of beneficiaries of the preferred
class as named in the act, who are incapable of taking because
not dependent upon the deceased, prevent compensation to bene-
ficiaries of subordinate classes who were in fact dependent upon
the deceased? Obviously not, unless indeed the construction
placed upon the act by the supreme court is to be emasculated.
Assume that a deceased employee left surviving him, as sole
representatives of the first class, adult sons who were self-sup-
porting and in no way dependent upon him, and as beneficiaries
of the second class, aged and indigent parents, who were wholly
dependent upon him, and who, from his contributions in the
past, might justly anticipate the continuance of his bounty had
he survived. Are the parents to be deprived of a remedy merely
because of the existence of beneficiaries of the first class, who
could not recover because of lack of dependency ?

In the light of the construction placed upon the act by the
supreme court this provision can only be construed as meaning
that beneficiaries of the subsequent classes can take only when
there is no beneficiary of thg prior classes dependent upon the

A similar question was presented in an action arising under
the Indiana Death Act, which gives a right of action to the per-
sonal representative for death caused by wrongful act or omis-

26 Gulf, C. & S. F. R. Co. V. Mc- Liability Act, but unquestionably
Ginnis, 228 U. S. 173, 57 L. ed. 785, the rule is the same.

3 N. 0. C. A. 806, rev'g — Tex. 28 Kansas City Soutliern R. Co. v.

Civ. App. — , 147 S. W. 1188. Leslie, 238 U. S. 590, 50 L. ed. 1478,

27 Gulf, C. & S. F. Ry. Co. v. Hig- rev'g 112 Ark. 305.
ginbotham, — Tex. Civ. App. — , 29 Michigan Cent. R. Co. v. Vree-
173 S. W. 482. This case did not land, 227 U. S. 59, 57 L. ed. 417,
arise under the Federal Employers' rev'g 189 Fed. 495.


sion, provided that tlie damages "must imire to the exclusive
benefit of the widow or widower as the case may be, and chil-
dren, if any, or next of kin, to be distributed in the same man-
ner as personal property of the deceased." ^"^ The deceased
left surviving him adult children who were in no way dependent
upon him, and minor children of a deceased child who were
dependents. It was held that the grandchildren of the dece-
dent "were not 'children' and do not stand for or represent
'children' in the sense in which that word is used in this statute,
but they may be beneficiaries under the statute, indicated there-
in by the words 'next of kin.' "

In holding that recovery might be had for the benefit of the
grandchildren, notwithstanding the existence of children, who
could not recover because not dependent, the court said : "The
right of action accrues upon the death of the intestate. Unless
at that time, and at the commencement of the action, and also
at the time of awarding the damages, there be living some per-
son, or persons, related to the decedent of whom it can be said
that the law implies damages from the death of the plaintiff's
decedent, or who may be said to have suffered pecuniary loss
through his death, there can be no recovery under the statute
(Dillier v. Cleveland, etc., 34 Ind. App. 52) ; but if, as in the
case at bar, the decedent left no widow, but left surviving him
children who were not pecuniarily injured by his death, and
there were not existing at his death any beneficiary of the first
class, but there were, at the time of his death, and at the time
of the trial, beneficiaries of the second class, being 'next of kin,'
who were in fact pecuniarily injured by his death, such next of
kin come within the intention of the Legislature in designating
the beneficiaries for whom the action may be maintained. The
three minor grandchildren so dependent upon their grandfather
should stand in no worse condition than if the decedent had
left surviving him neither a widow or children. He left no
widow, and the children who survive him were not bene-
ficiaries. In the absence of beneficiaries of the first class who
have suffered pecuniary loss, the damage should go to the 'next

80 Burns' Ann. St. 1908, § 285.


of kin' sliowTQ to liave suffered loss as contemplated by the stat-
ute, and the decisions of the court construing it." ^^

The fact that the person for whose benefit the action is
brought is a nonresident alien does not preclude recovery.'^

The act is silent as to who are to be considered the next of
kin of a deceased employee. It is now fettled that the ques-
tion must be determined in accordance with the local law,^^
hence the common law and statutes of the various states form the
sole guide. In passing upon the question, the Supreme Court of
the United States said :

"Plainly the statute contains no definition of who are to con-
stitute the next of kin to whom a right of recovery is granted.
But as, speaking generally, under our dual system of govern-
ment who are next of kin is determined by the legislation of
the various states to whose authority that subject is normally
committed, it would seem to be clear that the absence of a defini-
tion in the act of Congress plainly indicates the purpose of
Congress to leave the determination of that question to the state
law. But it is urged as 'next of kin' was a term well known at
common law, it is to be presumed that the words were used
as having their common law significance and therefore as ex-
cluding all persons not included in the term under the common
law, meaning, of course, the law of England as it existed at
the time of the separation from the mother country. Leaving
aside the misapplication of the rule of construction relied upon,
it is obvious that the contention amounts to saying that Congress
by the mere statement of a class, that is next of kin, with-
out defining whom the class embraces, must be assumed to have
overthrown the local law of the states, and substituted another
law for it, when conceding that there was power in Congress to
do so, it is clear that no such extreme result could possibly be
attributed to the act of Congress without express and unam-

81 Pittsburgh, C, C. & St. L. R. Co., 128 Minn. 112, afT'd 241 U. S.

Oo. V. Reed, 44 Ind. App. 635. £11 GO L ed

32McGovern v. Philadelphia & R. " ,' " ' ,'

R. Co., 235 U. S. 389, 59 L. ed. 283, '' Seaboard Air Line Ry. v. Ken-

8 N. C. C. A. 67, rev'g 209 Fed. 975 ; ^^Y' 240 U. S. 489, 60 L. ed. — ,

Bombolis v. Minneapolis & St. L. R. aff'g 167 K. C. 14.


biguous provisions rendering such conclusion necessary. The
truth of this view will be made at once additionally apparent
by considering the far-reaching consequence of the proposition
since if it be well founded, it would apply equally to the other
requirements of the statute — to the provisions, as to the surviv-
ing widow, the husband and children, and to parents, thus for
the purposes of the enforcement of the act overthrowing the
legislation of the states on subjects of the most intimate domes-
tic character and substituting for it the common law as stereo-
typed at the time of the separation. The argument that such
result must have been intended since it is to be assumed that
Congress contemplated uniformity, that is, that the next of kin
entitled to take under the statute should be uniformly applied
in all States after all comes to saying that it must be assumed
that Congress intended to create a uniformity on one subject
by producing discord and want of uniformity as to many
others." 3*

The term "next of kin" as used in statutes ordinarily refers
to those who take the personal estate of the decedent under the
statutes of distribution.^^ The Illinois Death Act providing
for a recovery for the widow and next of kin has been construed
as referring to next of kin in a technical sense, and cannot be
limited to certain degrees of consanguinity.^® "If," said the
court, "the next of kin have been dependent on the deceased for
support, in whole or in part, it is immaterial how remote the
relationship may be, there has been pecuniary loss for which
under the statute compensation must be given." ^"^ The words
'''next of kin" in the Kansas Death Act have been construed to
mean those who inherit from the deceased under the statute of
descent and distribution.^*

34 Seaboard Air Lino Ry. v. Ken- v. Cleveland, C, C. & St. L. E. Co.,

uey, 240 U. S. 489, 60 L. ed. — , 237 111. 104, aff'g 142 111. App. 622.

affg 167 N. C. 14. 37 Chicago & A. R. Co. v. Shan-

85 In re Weaver's Estate, 140 non, 43 111. 338.

Iowa 615. ^^ Bolinger v. Beacliam, 81 Kan.

36 Chicago & A. R. Co. v. Shan- 746; Atchison, T. & S. F. Ry. Co.

non, 43 111. 338; Chicago, P. & St. v. Ryan, 62 Kan. 682. It is note-

L. R. Co. v. Woolridge, 174 111. 330, worthy, however, that the Kansas

rev'g 72 111. App. 551; Dukeman Act provides for distribution "in


In an action under the act it was held by a state court that
where under the state law illegitimate children by the same
mother are legitimate as between themselves, an action for the
death of an illegitimate child may be maintained in behalf of
his brothers and sisters by that same mother, she being dead.^'
This decision was subsequently affirmed by the Supreme Court
of the United States *" where it was further urged that under
such a- construction of the act the right should have been recog-
nized to seek to trace the paternity of the illegitimate child so
as to make the asserted father the "parent" under the statute.
This contention was disposed of on two grounds: (1) "Because
it was necessarily foreclosed by the ruling of the court below as
to the state law concerning the next of kin and the right of the
brothers and sister of the illegitimate child to inherit from him,
solely because of a common motherhood, a ruling which exclud-
ed by necessary implication the right now contended for;" and,
(2) "because, as no provision, either of the state law or of the-
common law, supporting the asserted right is referred to,
the suggestion may be taken as simply a typical illustration of
the confusion of thought involved in the main proposition relied
upon which we have previously adversely disposed of."

Although the act specifically mentions "children" and "par-
ents" as beneficiaries, the question as to the status of adopted
children or foster parents must unquestionably be determined in
accordance with the state law. As previously pointed out the
United States Supreme Court has declared that the question as
to who are next of kin must be decided in the light of the local
law. The words "parents" and "children" unquestionably have
a well defined meaning at common law, but so also has the term
"next of kin." The legislature has the undoubted power to
declare that under certain circumstances persons other than the

the same manner as personal prop- majority was vigorously dissented
erty of the deceased." from by two of the five justices con-

39 Kennev v. Seaboard Air Line ,., ,. ,, ,

^ stitutin^ the court.

Ey., 167 N. C. 14, afT'd 240 U. S. ,„ ^ t . .- t-

.„„ „^ T J Ti • i-i f ^o boa hoard Air Line Rv. v. Ken-
489, 60 L. ed. — . It is worthy of

note, however, in connection witli "t-y, 240 U. S. 489, 60 L. ed. — ,
this case that the decision of tlie afl'g 167 N. C. 14.

5100 SUTllEELAND ON DAMAGES, [§ 1332

natural progenitors or offspring shall be regarded as "parents"
or "children" as the case may be. Having done so, such a dec-
laration should be regarded as a definition of the terms "par-
ents" or "children," as used in the Federal Employers' Liability
Act to the same extent that a legislative declaration that illegi-
timates shall be regarded as next of kin under certain circum-
stances is upheld.

Under such a construction the question as to "svhether a
recovery may be had under the act by either the natural or
foster parent of an adopted child for its death, or by an adopted
child for the death of the natural or foster parent would de-
pend solely upon the status and rights of the respective persons
under the state law, and the same is true as to the collateral
kindred by the blood or by adoption.

Probably in most states a recovery is permitted in behalf of
adopted children for the death of the foster parent ; but the
converse is not true. The right of the adopting parent to re-
cover for the death of the foster child depends upon whether
such right is conferred by statute, as it does not exist at common
law. As such statutes are strictly construed, the right must
be clearly granted, and the fact that a right of action for the
death of the foster parent is conferred upon the child does not
per se extend a similar right to the parent to recover for the
death of the child.*^ An adopting parent cannot recover for
the death of his foster child under the New Jersey Act.*^

Apparently the provisions of the Adoption Act must be strict-
ly complied with, it being held in one case that where a foster
father brought suit for the death of his adopted child and upon
his death the action was continued by the foster mother, there
could be no recovery by the latter where it was shown that she
had not acknowledged the deed of adoption as her free act and
deed, although her husband had properly executed the deed and

4lBoswell V. Lake Shore Elec. 199, 126 Am. St. Rep. 312, 15 Ann.

Ry., 35 Ohio Cir. Ct. 522, 10 N. C. Oas. 148.

C. A. 743; Mount v. Tremont Lum- 42 Heidecamp v. Jersey City, H. &

bar Co., 121 La. 64, 16 L.R.A.(N.S.) P St. R. Co., 69 N. J. L. 284.


she had sigTied it.'*^ Such a ruling would seem to carry the doc-
trine of strict compliance to the border at least, if not beyond
the limits of common sense.

Even though an adoption act confers upon both the foster
parents and an adopted child the same rights as if the child had
been born in wedlock, such rights do not extend to other kin-
dred not covered by the statute, hence an adopted child cannot
inherit from kindred of the adopting parents by right of repre-
sentation." This being true, unquestionably an adopted child
is not "next of kin" to relatives of its parents either direct or

Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 5) → online text (page 28 of 192)