Nicoll v. Sweet , 163 Iowa 683 ( 1913 )

I regret that I am unable to agree with my Associates in regard to the admissibility of the evidence as to the number of children and instruction No. eleven and one half on that subject. I shall set out the record more fully than has been done in the majority opinion.

Plaintiff, Mrs. Nicoll, formerly Mrs. McNulty, was permitted to testify over objections as follows: "Q. Did he leave any family other than yourself? Did he have any children ? The Court: It is not admitted for the purpose of affecting damages in any way, but it is done for some other purpose. A. Four. Q. "What were their ages at the time of his death? A. The oldest was ten, the youngest was a little over a year old." In this connection, the court gave the following instruction: "(Eleven and one-half) You are instructed that there can be no recovery in this case for pain and suffering endured by the deceased resulting from the injury received by him, and you are also instructed that the remarriage of the widow of the deceased is not to be considered by you in diminishing the amount of damages sustained by said estate, if any you find. And on the other hand the amount of damages, if any you find, is not to be increased by reason of the deceased having children that he left surviving him; evidence of his children and the number thereof being admitted by the court solely as bearing upon the question of inducement or incentive to habits of industry in case the deceased had lived."

It is urged by appellant that admitting the evidence, as to the children, was erroneous; that the latter part of the instruction did authorize the jury to enhance the damages by reason of deceased having left children; and that the last two sentences therein are in conflict with each other. It may seem that, even though this evidence was not admissible, the exception taken to its admission was canceled by the instruction of the court that the damages were not to be increased by reason of the fact that deceased left children surviving. It has been held that where the verdict is not excessive, and the court instructed the jury to disregard the evidence, the error in admitting it is not fatal. 13 Cyc. 197, and cases, some of which are to the contrary. But it is claimed by appellant that the verdict is excessive, and that the instruction did not cure the error because the latter part of it did authorize the jury to enhance the damages. The object in introducing this evidence was, no doubt, to inform the jury that deceased had infant children dependent upon him for support. It is impossible to determine how far the assessment of damages was controlled by this evidence as to plaintiff's family of small children. The reasonable inference is that it had some influence upon the verdict. The damages in such cases are more or less uncertain in any event, and the evidence should be limited to legitimate elements of damage. Appellant contends that the question as to the admissibility of such evidence has been settled in the case ofBeems v. Railroad Co., 58 Iowa, 150, and that it is not admissible for any purpose in a case of this character. Appellee says that case was a three to two decision; that it is not in harmony with prior holdings, has not been followed since, is unsound; and that it has been an open question in this state for thirty years. It appears to me that the tendency of our former cases is to exclude such evidence. The question as to evidence in regard to children was not involved in the Stafford case, or the Wheelan case, and many of the other cases cited in the majority opinion. It is being now decided for the first time in this jurisdiction, or any other, so far as I am able to discover, that such evidence is competent,, under such a statute as ours, where the question is as to damages to the estate.

As stated, some of the cases hold that the evidence is not competent, but that if the court instructs the jury that it must not be considered as affecting damages, and the damages are not excessive, there is no prejudice. Other cases hold that, if such evidence is admitted and the verdict is excessive, it may be cured by remittitur, because the only effect of the evidence is to enhance the recovery. Chicago, R. I. P.Ry. v. Batsell, 100 Ark. 526 (140 S.W. 726). Though this is denied inJones v. George, 227 Ill. 64 (81 N.E. 4, 10 Ann.' Cas. 285), to which I shall again refer.

But the cases all hold that the evidence is incompetent. I am not prepared to say that a reversal should follow in every case where the evidence as to children is admitted. Cases might arise where the court instructed the jury squarely to not consider it as affecting damages and where the evidence is such that it could be fairly said that the verdict is not excessive and that there was no prejudice. But that is not the question being now determined. The question is: Is the evidence competent? The fact that jurors may learn about it on the street corners, or in the public prints, or incidentally in the courtroom is not, as I think, a reason for holding it competent.

As an original proposition, I should be inclined to say that the recovery should be the same whether a man is married or single. Conceding the rule to have been established by this court that evidence that the party is married is competent, I would not extend the rule to include evidence as to children. It occurs to me there are reasons for excluding evidence as to children which would not apply to the question whether the party was married. There is but one wife, who is an adult, but there may be many children, some of tender age. But the question as to whether evidence that a person deceased, or injured, is married is not the question here, and I shall not discuss it. The only question now is whether it is competent to show the number and ages of children.

I concede that it is proper for a jury to be advised, in a general way, of the situation and condition in life of the party injured, as held in the cited New York case of Perry v. Lansing, and other cases, but it seems to me the argument in support of the proposition that the evidence as to the number and ages of children is admissible is on the theory that children would be a greater inducement to earn and save. If it is an inducement for greater effort and stricter economy, the effect would be to increase the value of the estate, and, if that is so, the estate would suffer greater damage; therefore the recovery should be larger. I understand the majority to say this is not the purpose, but the reasoning and cases in support of the proposition are, as I think, based upon the theory that it is for that purpose. For instance, it is said that under the Nebraska statute, authorizing a recovery for the injury to support of dependent relatives, such evidence is competent, and that the reasoning of that court in such a case is applicable here. That such evidence is admissible, "not as a direct ground for the jury's action, but as showing what the deceased was doing, and likely to do, to make his life pecuniarily valuable to plaintiff." If the fact of having children is likely to make his life pecuniarily valuable, it should enhance the damages; if less valuable then the damages should be decreased. It would be one way or the other, depending on the character of the children, whether they were a help or otherwise.

I do not say that the evidence is not competent under the Nebraska statute, where damages do not go to the estate, as in Iowa. What I am trying to show is the false position of the majority when they say it is not admitted for the purpose of increasing or decreasing the damages, when it cannot have any other effect, and is not and cannot be admissible for any other purpose. It seems to be the theory under the Nebraska holding that the fact of having children would make the life more valuable, while in at least one Iowa case (Dupree v. Railway, 155 Iowa, 544) the thought seems to be that the life would be less valuable. This is so, or else I do not comprehend the ruling in that case. Here was the situation in that case, as stated in the majority opinion: "The plaintiff having shown the wages earned by the deceased, it was developed on cross-examination that he was saving none of his earnings and had no property. On redirect examination plaintiff was permitted to show that deceased was supporting a wife and three children. The defendant assigned error upon this ruling and cited Beems v. Railroad Co. in support of its position. The authority of that precedent was not discussed by the court, for we held that the evidence was admissible, in any event, as an explanation of the fact that deceased was not making any savings." If he was unable to save anything because of the expense of raising his children, what other effect could it have but to decrease the value of his estate?

It should be kept in mind that this is not a case under the Employers' Liability Act but is an action for damages to the estate of deceased. InState v. Rutledge, 135 Iowa, 581, a criminal case, it was held such evidence was not proper, and in it the Beems case is referred to and approved. In State v. Wangler, 151 Iowa, 555, a bastardy case, the ruling was the same, and the Beems case referred to, but it was held that in such a case there was no prejudice, on the theory, no doubt, that the form of the verdict in a bastardy case is guilty or not guilty, and the jury do not have to do with fixing the amount which shall be allowed for the support of the child. But these two cases do not quite reach the point now under consideration. The question first arose inDonaldson v. Railway, 18 Iowa, 280, but was not squarely decided; the court holding that, because the jury were, by the instructions, guarded against allowance of damages for improper causes, there was no prejudice. The court did say: "We would not be understood, however, as determining that evidence as to the number and ages of his children is strictly proper." In Lowe v. Railway, 89 Iowa, 420, 433, decided since the Beems case, it is stated that it was shown by the evidence, among other things, that deceased left a wife and three children, but the question now being considered was not raised in any manner.

Under statutes which provide that the damages for wrongful death inure to the benefit of the family, such evidence is admissible.Baltimore, etc., By. v. Mackey, 157 U.S. 72 (15 Sup. Ct. 491,39 L. Ed. 624 (2d Ed.)). In that case the statute excludes the creditors of deceased from any interest in the recovery and declares not only that the judgment shall inure exclusively to the benefit of his family but that the damages shall be assessed with reference to the injury done to the widow and next of kin. This seems to be the distinction running through the cases that, if the damages inure to the benefit of the family, it may be shown what persons compose the family, but not so if the damages go to the estate, as in this case. The question here is: What was the value of the life of the deceased to his estate ? The number of his children can have no bearing on that question. The measure of the recovery and the elements to be considered are stated inGrace v. Railway, 153 Iowa, 418, 432, and Neal v. Brick Co.,151 Iowa, 690, 695.

The thought in the last sentence of instruction eleven and one-half that evidence as to the children is to be considered on the question of inducement or incentive to habits of industry, etc., is on the theory, doubtless, that, as stated by the minority in the Beems case, it "would largely add to the value of his personal services to his own estate." The majority opinion in this case says the purpose is "to stimulate him to industry, prudence, and economy." It would seem that, if this be true, the only effect it could have would be to increase the value of his estate, and thus necessarily to increase the damages, so that the last two clauses in instruction eleven and one half are in conflict and cannot be reconciled.

Some of the cases exclude evidence as to children because its admission is likely to prejudice the jury. It was said by a majority of' the court in the Beems case that observation and experience do not teach that one's income is likely to increase in the same ratio as the number of his children. It would seem that there are other reasons for excluding such evidence. If it is thought that children would be an inducement to habits of industry, and thus increase the value of his estate, how long would the inducement continue? Would it continue during the entire expectancy of the person injured or deceased? Would there be other children born after the injury and after the trial? Would some of these die? What is their expectancy? What are their habits? Would their earnings, until they reach their majority, add to the estate, or would it cost more to raise them than they earn ? Suppose a man has six minor children, who are dutiful, in good health, industrious, and saving; they would, when old enough, be a great help and aid to the parent in accumulating and saving money. But suppose the children are sickly, requiring medical expense, they are unable to work, or suppose they are lazy and spendthrifts, would they enhance or decrease the value of the estate? We will say that the parent is injured or killed. If proof as to the number of children is competent, then the man with the family of children who are not helpful obtains the same advantage by such proof as the man whose family is an aid to him, unless all these matters are gone into. Would defendant's attorney dare to cross-examine and show that the children are cripples or sickly? For the purpose of argument, I am assuming at this point that the sympathies of the jury would not be aroused, and that they would fairly consider such evidence for the only purpose for which it could be considered, and that is to either enhance or decrease damages. If it be competent to show the number of children composing the family of the person injured or deceased, why would it not be competent to show that the parents or grandchildren of such person were members of his family, if that be the fact ? These and other questions naturally arise. It seems to the writer that these matters are too remote, uncertain, speculative, and would involve the investigation of collateral matters. To hold that such evidence is admissible necessarily overrules the Beems case and overturns a precedent of thirty years' standing, is against the overwhelming weight of authority, and establishes a dangerous rule.

If the evidence is properly in the record, it would be legitimate to refer to it in argument to the jury, and hereafter, in personal injury and like cases, we may expect it to be used to the best advantage, and in all probability we will be compelled to reverse cases because of it.

Appellee cites Hamann v. Bridge Co., 136 Wis. 39 (116 N.W. 854), and quotes therefrom as follows: "In an action for negligent death, by decedent's widow, suing as administratrix, she can show the state of her health, and the number of her children; the jury being properly cautioned that she can recover only for the pecuniary damage resulting to herself from the death." The opinion is brief on this point. It cites two prior decisions of the Wisconsin court, one of which Lawson v.Railway, 64 Wis. 447 (24 N.W. 618, 54 Am. Rep. 634) cites theDonaldson case, 18 Iowa, 280, as authority; and Abbott v. McCadden,81 Wis. 563 (51 N.W. 1079, 29 Am. St. Rep. 910), in which the court says: "The court charged the jury, on the subject of damages, that the damages `must be the money value only to her and her children which the life of the deceased was worth to her and them on the day of his death.' . . . This was error. The fact that there are children left surviving, whose support will be thrown on the plaintiff, is proper to be shown in evidence and to be considered by the jury; but the damages recoverable are those which the widow has suffered, not those which the children have suffered." From this it appears that there is a different statute in Wisconsin from ours by which the damages are for the benefit of the widow and not the estate.

Appellee also cites as being to the same effect as the Hamann case, 7 Enc. of Evidence, 439; but an examination of the text shows that this is the rule in states which by statute allow the right of action for the benefit of the next of kin of deceased. He also cites 8 Am. Eng. Enc. of Law, 941. But at page 940 of the same volume the same distinction is made which I make. It is there stated that, where the action is brought by the widow for the death of her husband, the ground of the admissibility of such evidence is that by the death of the father the responsibility of supporting and rearing the children is cast upon the plaintiff, their mother, and it is proper to show the extent and character of this responsibility thus cast upon her. Also 13 Cyc. 358, and numerous cases there cited. The text here refers to the number and condition of persons dependent upon deceased. Some of the cases there cited are under statutes such as I have mentioned. In my opinion the rule announced in the Beems case as to evidence in regard to children of a deceased person is correct, and that it is sustained by the weight of authority. In some of the cases the party injured was deceased, in others he survived, but the rule is the same, for in one case he is suing for his own injuries, and in the other his representative is suing for damages to his estate. As sustaining the rule in the Beems case, see 13 Cyc. 196, and cases, also Pennsylvania Co. v. Roy, 102 U.S. 451 (26 L. Ed. 141, 145 (2d Ed.)); Baltimore, etc., Ry. v. Camp, 81 Fed. 808 (26 C.C.A. 626, 54 U. S. App. 111); Louisville, etc., Ry. v. Binion,107 Ala. 652 (18 So. 78); Dayharsh v. Hannibal Ry., 103 Mo. 577 (15 S.W. 555, 23 Am. St. Rep. 900); Jones v. George, 227 Ill. 64 (81 N.E. 4,10 Ann. Cas. 285); Vandalia Coal Co. v. Yemm, 175 Ind, 524 (92 N.E. 49,94 N.E. 881); Simpson v. Foundation Co., 201 N.Y. 479 (95 N.E. 10, Ann. Cas. 1912B, 321); Carlile v. Bentley, 81 Neb. 715 (116 N.W. 772); Maynard v. OregonRy., 46 Or. 15 (78 P. 983, 68 L.R.A. 477); Ft. Worth v. Stokes, 33 Tex. Civ. App. 218 (76 S.W. 231); St. Louis Ry. v. Adams, 74 Ark. 326 (85 S.W. 768, 86 S.W. 287, 109 Am. St. Rep. 85); Louisville By. v.Eakins, 103 Ky. 465 (45 S.W. 529, 46 S.W. 496, 47 S.W. 872);Chicago, R. I. P. Ry. v. Batsel, 100 Ark. 526 (140 S.W. 726);Union P. Ry. v. Hammerlund, 70 Kan. 888 (79 P. 152); Rio Grande Ry. v.Campbell, 44 Colo. 1 (96 P. 986); Oil Co. v. Tierney, 92 Ky. 367 (17 S.W. 1025, 14 L.R.A. 677, 36 Am. St. Rep. 595); Union P. Ry. v.McMican,194 Fed. 393 (114 C.C.A. 311). These are not all the cases which might be cited. Many others are cited in some of these. It would unduly extend this dissent to quote at any length from these cases, but I wish to refer to a few of them.

In Pennsylvania Co. v. Roy, supra, a verdict for $10,000 was set aside and the cause reversed solely because of the admission of such evidence.

In the Kansas case (U. P. Ry. v. Hammerlund, supra), it was held that the evidence was not competent, and the court said the question is not debatable.

In the Kentucky case of Louisville Ry. v. Eakins, supra, the court quotes from the opinion in the case of City of Chicago v.O'Brennan, 65 Ill. 163, as follows: "Was this evidence admissible? If it was, then it would have been competent to have gone further and shown all the circumstances of the family, such as that the mother was an invalid, that one of the daughters was blind, that one son had accidentally lost a leg, etc., if such had been the case, so as to present a most pitiable picture of a helpless family dependent upon appellee for support as a lecturer, for, as the evidence had no place in the case but as a stimulant to the jury, it would have been just as competent to make the stimulant strong as weak. But was it competent at all? It is an elementary rule that evidence must be confined to the points at issue. There was no point in issue to which this evidence had any relevancy. This sort of attempt to foist irrelevant matters upon the attention of the jury, with a view to creating a personal interest, is too often the secondary resort of a party on the witness stand." The Kentucky case states that this rule has received the approval of that court in a number of recently decided cases, citing them.

In the case of Jones v. George, 227 Ill. 64 (81 N.E. 4,10 Ann. Cas. 285), supra, it was said:

On the trial of this case appellee was allowed to prove that he was a married man and had three children. The evidence was objected to, and the objection overruled. The damages recoverable in this case can only be compensatory. The domestic relations, the financial standing of the parties, are therefore irrelevant. . . . Youngblood v. S. Car. Ry.Co., 60 S. C. 9 (38 S.E. 232, 85 Am. St. Rep. 835), and note, where many other authorities are collected. . . . The error in admitting this evidence is virtually admitted by appellee and was recognized by the appellate court, but it was thought that the remittitur of $1,500 ought in some way to cure this error. We cannot assent to this view. Evidence of this character not only tends to enhance the damages, but it is calculated to arouse a sympathy for appellee which is liable to unconsciously influence a jury in the decision of other controverted questions of fact in the appellee's favor. It would be a dangerous precedent to hold that a party might introduce irrelevant testimony which would appeal to the sympathy, passions or prejudices of a jury in such a way as to insure him the verdict on all doubtful questions of fact, then permit the trial court to estimate how much of a gross sum awarded as damages was due to such irrelevant testimony, and deduct that from the total verdict and render judgment for the balance, and thus cure an error, but for which the verdict might have been in favor of the other party.

Early New York and Alabama cases are cited in the majority opinion. I have not examined them, but the later cases from those states which I cite hold that the evidence is inadmissible.

In my opinion, the evidence as to the number and ages of the children was not admissible in this case for any purpose, and the instruction cannot be sustained because of the conflict therein. I would reverse.

DEEMER, J., joins in the dissent.