Bertha Belle Tolley v. Engert

CABANISS, P. J., pro tern.

This appeal from an order denying appellant’s motion for a new trial as to both respondents is one of two taken in the same action, the other appeal by defendant, Pickwick Stage Company, having been this day determined

(Tolley

v. Engert, ante, p. 439). For the reasons stated in that opinion the cause should be remanded for a new trial—that is to say (and this we add to avoid misunderstanding), as to both defendants in view of the form of the verdict returned in the case.

Appellants complain that. several instructions were erroneously given to their prejudice, and others properly requested by them, refused. We think these criticisms untenable except as to one instruction later herein to be noted. The plaintiffs sued in the capacity of widow, Bertha Belle Tolley, and daughters and sole surviving heirs of Walter Ennor Tolley. The evidence having to do with the earning capacity and family relation existing at the time of his death between decedent and plaintiffs is to the effect that he was then fifty-two years of age, in good health, and earning- from several responsible and permanent employments approximately two hundred dollars per month; that the household consisted of said Tolley, the wife, and two of the three adult daughters, Elsie and Alice Tolley, all of whom were com

[444]

fortably maintained by the father in the family home without charge or cost, though both daughters were employed and capable of maintaining themselves; that the third daughter was a married woman and not a member of her father’s household; and it is gatherable from the record that the decedent was a kindly husband and father, of the home-loving type. Appellant contends that the court erred in giving the following instruction: “The only plaintiff that you will consider in this case is the wife; there is no evidence before the court to show that the three children were dependent on the father at all, so you will not consider any evidence as to them, as to whether or not they are entitled to anything that you will not consider for any purpose.” In thus eliminating the children the court erred. In support of this statement it is sufficient to cite

Redfield

v.

Oakland,