Lange v. Schoettler
Before: Temple
Synopsis
Action fob Death—Exemplary Damages—Erroneous Instructions.— In an. action for the death of plaintiff’s son, the grievance to be redressed is that of plaintiff as a relative of the deceased, and not that of the deceased; and it is error in such action to instruct the jury that they may allow exemplary damages, if the act causing death was wanton, cruel, and malicious.
Id.—Measure of Damages—Probable Value of Life to Relatives.— In an action for death only such damages can be recovered as the statute authorizes, and, in the absence of a different rule, the only damage allowed is the probable pecuniary value of the life of the deceased to the relatives in whose behalf the action is brought.
Id.—Evidence—Suffering of Deceased—Declarations—Question for Jury.—The statements made by the deceased in regard to his sufferings are admissible to indicate his bodily condition, and the extent of his injury; and the question whether they were feigned or not must be left to the jury.
Id.— Cross-examination—Hostility of Witness — Threat to Kill.—A witness for plaintiff may be asked on cross-examination if he has not threatened to kill the defendant, for the purpose of showing the degree of his hostility, and error, in refusing to allow such question, is not cured by proof elsewhere that the witness was unfriendly.
Id.—Intent of Deceased to Sue Defendant.—It is error to allow the plaintiff, in an action for death, to prove that the deceased intended to sue the defendant for the injury.
Id.—Authority of Attornev eor Plaintiff — Presumption—Mode of Assailing Authority.—The presumption is that the bringing of an action for death by an attorney representing the plaintiff was author, ized; and, if not authorized, the authority can only be assailed upon an application for a dismissal, and no issue can be made upon that point before a jury.
Temple, J. This action was brought to recover damages for the death of plaintiff's son, which it is charged was caused by the wrongful act of the defendant.
1. The first point, although apparently based upon the alleged insufficiency of the evidence, is that the jury was erroneously instructed that they could allow exemplary damages if the act causing death was wanton, cruel, and malicious.
I think this instruction erroneous, and that it was probably given under some misapprehension as to our statutes upon the subject. It has been uniformly ruled that the action provided for in section 376 of the Code of Civil Procedure, is a new action and not the action which the deceased might have brought for the wrong had he survived. Only such damages can be recovered [391]as the statute authorizes, and, in the absence of an express provision authorizing a different rule, the only damage allowed is the probable value of the life to those in whose behalf the action is brought. Of course, this cannot include any grievance personal to the deceased, or any damage allowed in the interest of the people as punishment. The relatives, or the representative in their behalf, can recover the value of that which they have lost through the wrongful act of the defendant, and nothing more. It is true, in the case of a mother or a wife the jury have been allowed to • consider the fact that they were deprived of the comfort, society, and protection of a son or husband, but it has been always held that this was in strict accordance with the rule that only the pecuniary value of the life to the relatives could be recovered. The probable comfort, society, and protection of the deceased had some pecuniary value.
The rule for computing damages in section 377 is expressly made applicable, and no doubt it was thus left in the judgment of the jury because all the elements upon which the estimate of pecuniary loss was to be based were problematical. The comfort, society, and protection, as well as the support which is to be estimated, is only something which might have been. The age, character, disposition, and health of the deceased were all to be taken into consideration. Everthing is uncertain and indefinite. Therefore, it is left to the jury to say what they deem just, and if they have not made their estimate upon a wrong basis, and have not acted under the influence of passion or prejudice, their judgment is final.
The statute of 1862 (Stats. 1862, p. 447) expressly allowed the jury to give exemplary damages, and this provision was carried into the first edition of the codes. It authorized such damages, pecuniary and exemplary, as the jury should deem just. In 1874 section 377 was amended by striking out the words “ pecuniary and exemplary.” The purpose of this amendment must have been to take away the right to exemplary damages, and
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)