Vredenburg v. Behan

Dissenting Opinion.

Poché, J.

It is admitted by the majority that the district judge committed a grave error to the prejudice of the defendants in charging the jury, “ that damages can be claimed by the heirs of the deceased for the loss of his life;” and that this errur had doubtless an important bearing on the verdict of the jury.

It is shown by the record that the jury did not mention in their verdict the elements of damages which they considered, and on which element or causes they predicated their finding; and nothing precludes the *645 supposition that they may have based, their verdict exclusively on the damages caused by the loss of the life of the deceased; in which case their verdict would necessarily be set aside and annulled.

In reviewing their verdict we, therefore, grope in darkness as to what error was committed by the jury, so as to be justified in even cutting down the amount allowed by them to one-half. I, th'erelore, think that under such circumstances, the case should have been remanded for trial according to law, as it appears, under the erroneous charge of the judge, that the trial which, took place was not conducted according to law.

I also earnestly differ from the opinion of the majority in visiting liability on W. J. Behan, who is shown to have been absent from the State when the bear, after it had been shot for and thus disposed of by the club, was brought back to the club grounds and kept there until the day of the accident without Behan’s knowledge or consent; and, therefore, without any opportunity on his part to protest against the presence and keeping of the animal on the grounds and thus to prevent the catastrophe which brought about this litigation.

Eor these reason I dissent from the opinion and decree rendered in this case.