Craft v. Northern Pacific Railroad

Parent and Child—Death by Wrongful Act — Code, § 34.— The word “child,” as used in section 34, Hill’s Code, providing that “a father, or in case of the death or desertion of his family the mother, may maintain an action as plaintiff for the death or injury of a child,” means a minor child.

Appeal from Multnomah: E. D. Shattuck, Judge. The plaintiff commenced an action in the circuit court of Multnomah County to recover from the defendant two thousand dollars on account of the death of her son, Benjamin P. Craft, who was run over by one of the engines of the defendant, and from the effect of which h.e died on August fifteenth, eighteen hundred and ninety-two. At the time of his death, it is alleged that the deceased was twenty-one years of age and over, that he resided with and was a member of the family of the plaintiff, and was cared for and supported by her, and that he also contributed of his wages to her support, and that by his death she has suffered and will continue to suffer great discomforts and pecuniary loss by reason of being deprived of the aid and assistance which her said son, Benjamin P. Craft, was accustomed to contribute td her support. The complaint alleges that the husband of plaintiff and father of deceased had, long prior to the commencement of the suit, deserted his family. The action is based on section 34 of Hill’s Code, which provides that “A father, or, in case of the death or desertion of his family, the mother may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward.” A demurrer was filed to the complaint, upon the ground that the right of action given to a parent for the injury or death of a child applies solely to a minor child, and that the right of fiction for the injury or death of an adult child survives to the personal representatives and is to be enforced under section 371 of Hill’s Code, which provides that “ When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and the damages therein shall not exceed five thousand dollars, and the amount recovered, if any, shall be administered as other personal property of the deceased person.” The circuit court sustained siil demurrer, and rendered judgment for the defendant; from which this appeal is taken.