Durkee v. Central Pacific Railroad (1880) · DecisionDepot

Durkee v. Central Pacific Railroad

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 5,882Published

Before: McKinstry, Morrison

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Holding. In an action by a parent for injuries to a minor child, the measure of damages is limited to the parent's pecuniary loss, such as loss of services and medical expenses, and does not include damages for the child's personal pain, suffering, or disfigurement.

Issues

Whether a parent may recover damages for a minor child's pain, suffering, and disfigurement in an action for personal injuries.
Whether the measure of damages in a parent's action for injury to a minor child is limited to the parent's own pecuniary loss.

Disposition. reversed

Quotations verified verbatim against the opinion

“Plaintiff is not entitled to recover in this action damages for the pain or suffering which his son, Milton W. Durkee, experienced from the injuries he received, or for his disfigurement therefrom.”

Synopsis

Appeal from a judgment, and order denying a new trial, in the Third District Court for Alameda County. McKee, J.

The facts are stated in the opinion.

Opinion — Morrison

Morrison, C. J.: This is an action by plaintiff to recover damages of defendant for an injury to the infant son of plaintiff, alleged to have been caused carelessly and negligently by the servants and employees of the defendant. It appears, from the evidence in the case, that, on the 2nd day of July, 1876, Milton W. Durkee, the son of the plaintiff, aged about five and a half years, was run over by an engine belonging to and at the time in the ser[389]vice of the defendant, and was so severely injured that amputation of both his feet became necessary. Verdict for $10,000 damages.

It is unnecessary for us to examine into the circumstances connected with the injury, as the question of contributory negligence was fully and fairly presented to the jury for their consideration, and the fact was found that there was no contributory negligence. In our opinion, the evidence justified the jury in finding that there was negligence on the part of the railroad employees, and that there was no contributory negligence on the part of the plaintiff or his infant son.

There remains, therefore, but one question for this Court to determine, in passing upon the appeal, and that relates to the measure of damages in cases of this character. The action is brought under §§ 376 and 377 of the Code of Civil Procedure, which read as follows:

“ Sec. 376. A father, or in case of his death or desertion of his family the mother, may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death, or if such person be employed by another person who is responsible for' his con.duct, also against such other person.”.

“ Sec. 377.. When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section, such damages may he given as under all the circumstances of the case may he just.”

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Concurrence — McKinstry

McKinstry, J., concurring: I concur. The complaint avers: “ He, the said plaintiff, was, at the times herein after mentioned, and is, the father of Milton W. Durkee, an infant herein after mentioned, and that said infant has always been cared for and maintained by said plaintiff.”

The complaint contains no averment of loss of service, or of expenses incurred or paid by the father in consequence of the injuries suffered by the child. The action is evidently based upon the idea that the statute (Code Civ. Proc. 376) has provided, that the father, as natural guardian of his infant child, may maintain an action—for the benefit of the child—to recover damages for injuries done the infant by the wrongful act or neglect of another—an action independent of and entirely distinct from another action which he may bring “per quod servitium amisit" etc. It is quite clear, that the two actions cannot be united; for in such case it would be impossible to determine how the judgment should be divided—how much of the verdict was intended for the father individually, how much for him in his capacity of trustee for the infant.

The averments in the complaint with respect to the facts out [395]of which the plaintiff’s alleged claim for damages has arisen are as follows : “ And said defendant, by its said conductor and engineer, and without the fault of plaintiff, and without plaintiff or the said Milton W. Durkee in any manner contributing thereto, negligently, carelessly, heedlessly, and wantonly ran said locomotive engine upon and over the person of the said Milton W. Durkee, and then and there, and thereby, so wounded, mangled, crushed, and broke the feet, ankles, and legs of him, the said Milton W. Durkee, that it became and was necessary to amputate and cut off, at or near the ankles, both of the feet of him, the said Milton W. Durkee; and in consequence of said wounding, mangling, crushing, and breaking, the said feet of the said Milton W. Durkee were, on, etc., * * * necessarily amputated and cut off by a surgeon employed by plaintiff for that purpose; and by means of said injuries and amputations, the said Milton W. Durkee suffered and endured great pain and anguish, and has lost and been deprived of both his feet” The prayer is: “Plaintiff demands, as relief herein, judgment against said defendant for the sum of fifty thousand dollars, and the costs of this action.”

It is obvious that the only damages alleged are such as are personal to the son, and for which the infant, by his guardian, could maintain an action. Unless the statute has in effect made the father guardian, and authorized him as such to recover damages in an action like the present, to be held by him in trust for the benefit of the infant, this judgment cannot be upheld. The section of the Code of Civil Procedure does not declare that the father may maintain the action for or on behalf of the infant, all of which is implied when the word “ guardian ” is employed ; nor does it provide against any fraudulent or improvident waste of the moneys which may be recovered, as by requiring the father to give bond, or otherwise. To construe the section of the Code so as to authorize the present action, we would have to interpolate the words as “ trustee ” or “ as guardian,” or “ for the use and benefit of the infant,” or some other equivalent or more specific expression, and would also have to hold that the beneficiary can have no other protection as against waste or fraud, than such as may be afforded by a court of equity by reason of its general jurisdiction in matters of trust. The [396]Courts are justified in holding that an intent on the part of the Legislature which contemplates so broad a departure from the common law, and involves consequences so serious, shall be. clearly and distinctly expressed.

It can hardly be said, however, that the section of the Code is ambiguous. The language employed seems to me a plain enactment that the “ father ” may himself recover damages for the “injury or death” of the infant. In case of death, the damages recovered, whatever the rule of damages, must inure to the benefit of the father. There is nothing in the language itself to indicate that a different beneficiary was intended where the injuries do not result in death.

But it surely cannot require argument to establish that the Legislature has no power to authorize one person to recover, and apply to his own use, damages for an injury sustained by another; nor can it be necessary to do more than refer to the constitutional limitations which prohibit such legislation. If such power existed, it would include a power to deprive a citizen of his property “ without due process of law.”

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Synopsis

Opinion — Morrison

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Concurrence — McKinstry

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