Waterbury v. Elysian Spring Water Co.

SCOTT, J., pro tern. This is an action by the mother, being the sole heir at law, of a minor child, Harmon Little, to recover damages for the death of said child which is alleged to have been caused by the negligence of defendants. The jury gave a verdict in favor of plaintiff in the sum of $5,500 and a motion for new trial was denied. Defendants appeal.

The evidence showed that the deceased was in the street at about 3:45 P. M. on February 8, 1932', when he was struck by a truck operated by defendant Rodgers, an employee of his co-defendant, Elysian Spring Water Company, and that he died the same day. At the time of his death he was eleven years of age. The accident occurred on Court Street in the city of Los Angeles, at a point several yards west of its intersection with Hope Street.

The points made for reversal are set out in appellants’ brief as follows: 1. Errors in instructions. 2. Prejudicial [358]misconduct of plaintiff’s counsel. 3. Insufficient evidence. 4. Contributory negligence of deceased as a matter of law.

Appellants complain of the following language in an instruction embraced within the court’s charge to the jury: “You are not confined, however, in your estimate of the monetary loss to the parent to the period of minority of the child, for the relation of parent and child, of course, does not terminate when the child reaches its majority, and thereafter there remain certain legal obligations of support that are recognized in the laws and are enforceable by appropriate legal proceedings. For it is the duty of the father and mother, and the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability. You have a right to take into consideration the probable length of life of the parent and the probability, if such you find from the evidence, that the child even after its majority might do that which the law did not require, namely, aid in the support of the parent.” The specific criticism of the foregoing language as an instruction to the jury is: (1) that the instruction in so many words informs the jury that the plaintiff is a poor person; (2) it permitted the jury to award damages for the loss of support although the only elements of damage claimed in the complaint were society and comfort, and (3) it permitted the jury to speculate and surmise as to whether the plaintiff would, after the child reached its majority, be a poor person and unable to maintain herself by work.