Opinion
No. 27467
Decided January 17, 1940.
Negligence — Administrator's action for wrongful death of minor — Brought for benefit of mother, brother and half brothers — Special findings by jury — Evidence of pecuniary loss to half brothers.
APPEAL from the Court of Appeals of Cuyahoga county.
This action was instituted in the Court of Common Pleas under favor of Sections 10509-166 and 10509-167, General Code, for the recovery of damages for the wrongful death of Charles Jordan, a sixteen-year old boy, who was killed February 1, 1936, in a collision between a street car of the defendant company and an automobile in which the boy was riding with his stepfather as the driver.
The plaintiff, as administrator of the boy's estate, is prosecuting this action for the benefit of the boy's mother, a twenty-four year old brother, Turner Smith, and two half brothers, Reuban and Alonzo Jordan, then of the respective ages of eight and five years.
The trial resulted in a general verdict and judgment for the plaintiff in the sum of $3,500. In addition to the general verdict the jury returned four special findings of fact in response to questions submitted. These questions and findings are as follows:
"1. What is the amount of pecuniary loss sustained by Reuban Jordan by reason of the death of Charles Jordan? $1400.
"2. What is the amount of pecuniary loss sustained by Alonzo Jordan by reason of the death of Charles Jordan? $1400.
"3. What is the amount of pecuniary loss sustained by Annie Jordan by reason of the death of Charles Jordan? $700.
"4. What is the amount of pecuniary loss sustained by Turner Smith by reason of the death of Charles Jordan? Nothing."
Upon an appeal by the defendant on questions of law the Court of Appeals held that "the judgment of the said Court of Common Pleas is affirmed for $700 and reversed and final judgment rendered for defendant-appellant as to $2800."
The case is in this court by reason of the allowance of the plaintiff's motion to certify the record. The defendant has filed no appeal in this court.
Messrs. Harrison Marshman, for appellant.
Messrs. Squire, Sanders Dempsey, Mr. M.R. Dill and Mr. A.E. Powell, for appellee.
First it is necessary to identify the members of the family here involved. From the record it appears that the mother, Annie Jordan, was married twice. Charles Smith was her first husband, and Otis Jordan was her second. The twenty-four year old son, Turner Smith, and the decedent, Charles Jordan, were children of the first marriage, but the latter had abandoned the name of Smith and assumed that of Jordan. The small boys, Reuban and Alonzo Jordan, are children of the second marriage. In the collision February 1, 1936, both Charles Jordan, the sixteen-year old son, and the second husband, Otis Jordan, were killed.
The single question here presented by the plaintiff relates to the two small boys, Reuban and Alonzo Jordan, half brothers of the decedent, Charles Jordan. Although the journal entry of the Court of Appeals is silent thereon, the opinion indicates that the reversal of the judgment of the Court of Common Pleas is based upon the alleged absence of evidence of pecuniary injury on the part of the two half brothers. In other words, the Court of Appeals affirmed the finding in the sum of $700 in favor of the mother but reduced the judgment $2,800, the amount of pecuniary injury the jury found to have been sustained by the two half brothers. Does the record justify this conclusion?
According to the uncontradicted evidence the decedent, Charles Jordan, attended school but also was employed in a meat market. For this work he received wages varying from $5.50 to $7 per week. He gave his earnings to his mother, Annie Jordan. However, the defendant vigorously contends there is no evidence tending to prove that any of this money ever was either given to the two small half brothers or even used for their benefit. Likewise the defendant emphasizes the testimony of the mother to the effect that her second husband, Otis Jordan, had been living with her and supporting the family. It is of course true that the mother did so testify, and it is proper for the defendant to stress this inconsistency. However, it may be observed with equal propriety that the mother is not the plaintiff although this action is prosecuted in part for her benefit; and neither is hers the only evidence in the record on the matter of support. Another witness testified that the mother was not living with Otis Jordan, that he was not supporting the family, that the mother was ill, and that she was receiving assistance from the county. This unsatisfactory status of the evidence seems to be due in part to the fact that this case was tried concurrently with a similar action instituted by the administrator of the estate of Otis Jordan. In that case the plaintiff sought to emphasize the support furnished by the husband and minimize that supplied by the boy; and of course the defendant attempted to minimize that furnished by the husband and emphasize that supplied by the boy. In the instant case the plaintiff emphasized the support furnished by the boy and minimized that supplied by the husband; and the defendant, in keeping with the spirit of the occasion, naturally reversed this process. The net result cannot accurately be designated as a consummation devoutly to be wished.
The record is one of such length that the evidence cannot well be further restated here. After a careful study this court is of the opinion that the record does contain evidence from which reasonable minds might well draw different conclusions with reference to pecuniary injury to the two half brothers of the deceased boy. Hence it becomes necessary to reverse in part the judgment of the Court of Appeals and to affirm that of the Court of Common Pleas.
Judgment reversed in part and affirmed in part.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS and HART, JJ., concur.