The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-09-13

less what it would have cost to maintain
him before he earned anything and while
he was earning his wages Whatever that
sum amounts to by calculation, that the
parent is entitled to, recover and no more.
| therefore say that Judge Van Fleet
decided that there was not one rule for
the rich and another rule for the poor.
The rule which he laid down had been
laid down generations ago, and 1T was just
that which | have stated.
Under the rule it is very clear that those
who go earlier to breadwinning employ
to their I parents. And It IS not true that
the case decided, or that it involves the
result, that rich mans son is more
valuable than a poor mans.
Justice r. w. Henshaw-T The idea that
this opinion discriminates against the chill
dren of poor is based upon a total mis-
understanding and does Justice Van Fleet
a grave injustice.
is the estimated net value of the services
of the child to the parent during his mi
nority. Such has always been the rule of
recovery, such 1t was declared In the opin-
ion to be, and such it will continue to be
until changed by the Legislature. If it is
deemed a harsh rule 1t is to be remem-
bered that it was framed long before JUS
tice Van Fleet was born and that he is
not responsible for it.
There is no way of determining in any
case exactly what child would have
done is to estimate what probably he
would have earned. In estimating this
the jury takes into consideration the con-
dition and situation of the parents and
the probable occupation of the child dur
ing minority. For 1t must be supposed
that the child will follow some occupation
or it could earn nothing. Is child more
likely during his minority to follow his
fathers occupation, or some other! The
opinion says he is more likely to follow
that of his father, and while the whole
matter is problematical that view accords
with the common observation of mankind.
AS a poor mans son may likely earn
something for the support of his parents
during minority and as rich o mans son son
same period, it follows that SO far from
the opinion declaring either directly or
by inference that a rich mans son Is
worth more than is poor mans, the ex-
act converse is the truth. Under the prin-
ciples announced in the opinion a poor
man would ordinarily recover more In
such an action than would rich man.
w. w. Foote-You asked my opinion as
opinion of Judge Van Fleet In the case of
Fox against the Oakland Consolidated
Street Railway Company. l have just
made a careful examination of the case,
and cheerfully comply with your request;
more readily for the reason that the gen
tlemen occupying judicial positions are
fend themselves, and are therefore fire.
quently the subjects of abuse and calum-
ny which they are utterly unable to meet
by any efforts of their own.
The case in question was an action for
damages, brought by the father for the
loss of the services of his minor son. The
jury returned verdict of $4,000 A motion
for a new trial was refused, an appeal
taken to the Supreme Court, and the
Judgment was reversed solely on the
ground that the damages awarded. $4,000,
were excessive.
Any fair-minded man who examines
Judge Van Fleets opinion, concurred in
by Justices Harrison and Beatty, will see
at glance that there is not In the opin-
ion any language which, even by distor-
ton, could be construed into the charge
made against Judge Van Fleet having
the rich and against the poor, Judges
must follow well-known precedents or
else the whole judicial system is a failure.
There is an unbroken current of author
ity in this State and in every other where
the common law prevails, that the only
element Of damage, in cases of this kind,
is the loss to the father of the services Of
the child. The reasoning in the Fox case
proceeds upon these lines entirely, and is
not subject to the adverse criticisms
which has been SO frequently made
negligence, and, in fact, every other ques-
ton which arose in the case, except the
one as to excessive damages, was decided
in favor Of the plaintiff.
No fair-minded Judge, mindful Of his
OATH could have rendered any other opin-
ion than the one handed down in the Fox
Court. The language Of the opinion
clearly shows that there was no intention
to against one class
Of the authorities we are clearly of the
opinion that the question of the parents
negligence in any given case cannot be
made to turn upon the state of his
finances"
Whenever the time shall arrive that
poverty or wealth are to be weighed in
the balance by Judges of our highest
courts, then the period of their usefulness
is over and reign Of anarchy will COM
mence.
H.,
and have no interest In It, For the last
twenty-five years / have had a large
number Of cases against the railroad COM
pany, never one for it, and l can conscien-
tiously say, in the interests of decency
and justice that the opinion In the Fox
case meets with my entire approval. 1
ate OF andd simply agd as
you my views upon this case without any
reservation whatever. If We are to elect
Democratic Judges, let us do SO without
resorting to means which are questionable
and the Justification of records.
Ex-Supreme Justice Van R. Pater son
If 1 understand the matter cor
rectly those who criticize the opin-
solidated Railway Company, reported in
lis California, So ct seq, claim that he
there attempted to. draw some line of
ciety separated from others by difference
of wealth, profession or employment: or
at least, that his opinion lays down rule
of decisions In actions by parent for
damages resulting from the death Of a
minor child through the negligence of a
corporation which is less favorable to
the case of poor man plaintiff than to
the case of rich pan plaintiff.
If this be the contention / have no hes
itancy in saying that the construction is
directly opDosed to what was in fact de-
cided. An opinion must always be con-
strued in the light of the facts of the
case, the contentious of the parties, and
the points actually decided. Let us take
a look at this case and see what the
court said and decided there
1t was an action by a father to re-
cover damages for the death, through the
negligence of street railway company,
of his little boy, four years and a half
old. He had verdict for $4,000, and the
corporation appealed. Counsel for appel
liant tried to convince the Supreme Court
that the verdict should be set aside on
account of the insufficiency of the evil
dence. The court refused to do so, re-
CARELESS of any apparent preponderance
Of the evidence in favor of the corpora
ton, because there appeared to be sub
stantial conflict In the evidence. That Is
the first point decided. 1t was also claim
ed that the parents were guilty of con-
tributory negligence in allowing the child
to wander from the house and upon the
track of defendant. The court held that
this question was one solely for the jury.
refused to interfere, and furthermore held
ft, ctr lay hot