Kearse v. Seyb.

vendor owed him a duty, the violation of which would create liability. [Pierce Oil Co. v. Deselms, 212 U. S. 159, 177-179; Stowell v. Standard Oil Co., 139 Mich. 18, 25; Clement v. Crosby & Co., 148 Mich. 293; Standard Oil Co. v. Parrish, 145 Fed. 829.] This distinction is fully recognized and commented upon in Heiser v. Mfg. Co., 110 Mo. 605, 612-617, and finds apt illustration in wholesale pharmacists who sell poisons carelessly labelled, or not labelled at all. [Fisher v. Golladay, 38 Mo. App. 531; Thomas v. Winchester, 6 N. Y. 397.]

So if a sale of an article is prohibited by law unless it be first inspected, the remote vendor who violates the statute is answerable to the ultimate consumer, since the statute is held to be intended for the protection of the latter. [Stowell v. Standard Oil Co., supra, 25; Fisher v. Golladay, 38 Mo. App. 531.]

We have noted the singular state of facts which defendants Anderson & Gustafson have brought out as execusatory of them in letting a car of gasoline, intended by the Midland Company for a purchaser in Illinois, be substituted for a car of kerosene intended for the Independent Company at Lancaster, Missouri. But all that should not exculpate them. In the first place, they sold the kerosene as then in Kansas City. It was their duty to know it was there. Next they wrote to the Independent Company at Lancaster that the car of kerosene they sold to it had left Kansas City for Lancaster and bills of lading were forwarded to the latter company at Lancaster. It was the duty of Anderson & Gustafson to know whether that was true; and this could easily have been ascertained had they undertaken the duty of inspection which the statute placed upon them.

Referring to the matter of contributory negligence by the deceased, we find that there was no plea of that nature. But on the theory that there was evidence in plaintiff's behalf which tended to show deceased was guilty of such negligence in attempting to start a fire with kerosene, each party submitted the question to the jury and the finding has been against defendants.

Stevens v. K. C. Light & Power Co.

In some of the foregoing authorities it is stated that that manner of starting a fire was so common as that courts would take judicial notice of it. But we need only say that it is at least a question for the jury. [See, also, Standard Oil Co. v. Reagan, 84 S. E. 69.]

We find no substantial merit in the objections to the instructions for plaintiff. No. 1, properly submits plaintiff's case. If the matters submitted therein were found to be the facts, then it was right to direct a verdict on those facts. It was not reversible error to assume in No. 2 that defendants Anderson and Gustafson sold oil in a tank car. The face of the record shows that to be true. There is no objection to No. 4, the omission of the word "wife" in the last line was palpably a clerical error and not misleading.

That refused instructions offered by defendants were properly refused, is shown by the foregoing considerations relative to defendant's liability.

The verdict of $7500 cannot be said to be excessive. The amount in the Waters Pierce Oil Company case supra, was nearly twice that amount, and in other cases cited by plaintiff much larger sums were upheld.

We find no reversible error in the remark of the court as to starting fire with kerosene. However the point is not before us, since it was not saved in the motion for new trial. We find no error and hence affirm the judgment. All concur.

LULA MAY STEVENS, Respondent, v. KANSAS CITY LIGHT & POWER CO., Appellant.

Kansas City Court of Appeals, January 27, 1919.

1. MORTALITY TABLES: Evidence: Damages. Mortality tables are properly received in evidence in an action for wrongful death of a husband, to show the deceased's probable length of life if he had not been killed and thereby ascertain the value of his earnings if he had lived.

2.

3.

Stevens v. K. C. Light & Power Co.

-: Judicial Notice: Evidence. Courts will take judicial notice of mortality tables; and therefore instructions may be given to the jury concerning them though they have not been introduced in evidence.

-: Evidence: Health and Habits: Caution. While mortality tables may be submitted to the jury in case of death from wrongful act, yet the court should instruct them that they are not bound by such tables and that they should consider in connection with them the deceased's health, vocation, habits, etc.

4. INSTRUCTION: Expectancy of Life of the Plaintiff. An instruction for plaintiff concerning mortality tables in an action for damages for wrongful death of a husband should not confine the consideration of the jury to the expectancy of life of the deceased alone, but should also submit the expectancy of the plaintiff, to the end that the jury ought not to allow damages reaching beyond her life.

Appeal from Jackson Circuit Court.-Hon. O. A. Lucas, Judge.

REVERSED AND REMANDED.

John H. Lucas and William C. Lucas for appellant.

Prince & Harris, J. N. Beery and J. E. Westfall for respondent.

ELLISON, P. J.-Plaintiff is the widow of Edward Stevens who was killed through the negligence of defendant and she instituted this action for damages, in which she succeeded in the trial court. We decided the case the 20th of May, 1918, by reversing and remanding on account of the trial court giving an instruction relating to mortality tables. Afterwards a motion for rehearing was granted on the ground that we desired to further consider whether the trial court erred in allowing such instruction. It reads as follows: "The court instructs the jury that in computing damages, if any, resulting from the loss, if any, of a portion of the earnings of the deceased, Edward Stevens, if any, which you may find the said Lula Stevens, widow, and David William Stevens, child, have sustained and the

Stevens v. K. C. Light & Power Co.

will in reasonable certainty sustain because of the death of said Edward Stevens, you may first find the amount of such annual benefits, if any; and then, in order to determine the present cash value of said benefits, you may multiply the same by the figures in the following table set opposite the age on the table, which age you may find and believe was the age of the deceased at the time of his said death;' ""

The instruction doubtless was intended as a guide to the jury in ascertaining what the deceased's earnings would have been, so that they might allow a proper sum to plaintiff and her young son. There can be no doubt but that such tables may properly be considered for that purpose. [Boettger v. Iron Co., 136 Mo. 531, 536; O'Mellia v. Railroad, 115 Mo. 205, 222; Grayson v. Grayson, 190 S. W. 930; Davis v. Springfield Hospital, 196 S. W. 104, 108; Collins v. Star Paper Mills Co., 143 Mo. App. 333, 342.] In Pennsylvania, this rule of evidence was once questioned. It is said that such tables are appropriate in ascertaining the average duration of life in insurance cases, but that an individual case "depends on its own circumstances.” [Shippens and Robbins Appeal, 80 Pa. St. 391, 396.] But in accordance with the foregoing rulings in this State, as well as in deference to many others, we must rule as we have stated.

The instruction was given notwithstanding the tables were not introduced in evidence. This we think was permissible on the ground that the courts will take judicial notice of such tables. [Gordon v. Tweedy, 74 Ala. 232, 237; Louisville & N. R. R. v. Mothershed, 97 Ala. 261, 267; Lincoln v. Powers, 151 U. S. 436, 441; Ruehl v. Telephone Co., 23 N. D. 6, 19.]

But such instruction should inform the jury that they are not bound by such tables and that they should consider them in connection with the individual involved, his health, vocation, habits, etc. [Schell v. Plumb, 55 N. Y. 592, 599; Vicksburg v. Railroad, 118 U. S. 545, 554; Snell v. Jones, 49 Wash, 582; Camden & Atl. R. R. v. Williams, 61 N. J. L. 646, 648; Arkan

Stevens v. K. C. Light & Power Co.

sas Midland R. R. v. Griffith, 63 Ark. 491, 496, 497; Crouse v. Railroad, 102 Wis. 196, 207; Illinois Central R. R. v. Houchins, 121 Ky. 526, 533; Steinbrunner v. Ry. Co., 146 Pa. St. 504, 516, 517.] The Judge writing the opinion in the last of these cases closed with this remark: "While we are unable to see how such evidence is to be excluded, I must be allowed to express the fear that it may prove a dangerous element in this class of cases, unless the attention of juries is pointedly called to the other questions which affect it." [See, also, Kerrigan v. Railroad, 194 Pa. St. 98, 106.]

There is this further objection to the instruction. It bases the damages to plaintiffs on the expectancy of life of the deceased, alone, when, in fact, the expectancy of life of the plaintiff must also be considered. Her damages consisted in the loss of deceased's support. There are two lives to be considered, hers and her deceased husband's. She was only entitled to damages estimated on the length of his life if she lived longer than he. For, no damages could accrue to her after her death. The husband's duty to support his wife ceases, of course, at her death. Therefore her loss in his death cannot reach beyond her own life. [Jones v. McMillan, 129 Mich. 86, 90; Illinois Central R. R. v. Crudup, 63 Miss. 291, 303; Valente v. Railroad, 151 Calif. 534, 542, 543; Duvall v. Hunt, 34 Flo. 85, Ill.] If a jury believed from the evidence, including mortality tables, that a deceased husband would probably have lived and earned money for a long number of years, yet also believed that the plaintiff wife was in the last stages of a fatal disease and would live probably only a short time, then, manifestly, she would be confined in the estimate of her damages to the length of her own life. Doubtless it was considerations of this character which led the supreme court of Mississippi in the Crudup case, just cited, to state that "In all cases of this character it must be the expectation of that one who would sooner die which should control." And caused the supreme court of Florida to remark that the error of so framing an instruction that it would