36 sole support of the next of kin claiming as a dependent. The claim of dependency cannot be made where the deceased was, at the time of his death, serving a term in the penitentiary, as, during the term of his confinement, he very plainly could not have contributed to the support of the next of kin.37 Under statutes allowing a recovery by dependent next of kin generally, it is not material how remote the relationship may be if they are dependent upon the deceased for support.38 The right of action given by a Georgia statute to a mother for the killing of her son on whom she is dependent in part or wholly for support, is not confined to residents of that State, but belongs alike to mothers wheresoever they may reside at the time of the killing in Georgia of such son.39 § 7050. Pecuniary Benefit from Life of Deceased as a Condition to Recovery.-Damages are recoverable only where the statutory beneficiaries of the deceased are shown to have sustained pecuniary loss by reason of his death;40 and a recovery will not be sustained where Ga. 571; s. c. 36 S. E. Rep. 855; St. Louis &c. Co. v. Bishop, 14 Tex. Civ. App. 504; s. c. 37 S. W. Rep. 764. 36 Atlanta &c. R. Co. v. Gravitt, 93 Ga. 369; s. c. 26 L. R. A. 553; 20 S. E. Rep. 550; Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406; Daniels v. Savannah &c. R. Co., 86 Ga. 236; s. c. 12 S. E. Rep. 365; Richmond &c. R. Co. v. Johnston, 89 Ga. 560; s. c. 15 S. E. Rep. 908; Boyle v. Columbian Fireproofing Co., 182 Mass. 93; s. c. 64 N. E. Rep. 726; Texas &c. R. Co. v. Martin, 25 Tex. Civ. App. 204; s. c. 60 S. W. Rep. 803. 37 Smith v. Hatcher, 102 Ga. 158; s. c. 29 S. E. Rep. 162. But otherwise where deceased was incarcerated for a minor offense, in which event a parent has a right of action, -as where, at the time of his death, he was serving a term in the chaingang for the violation of a penal law: Amos v. Atlanta R. Co., 104 Ga. 809; s. c. 31 S. E. Rep. 42. 38 Chicago &c. R. Co. v. Shannon, 43 Ill. 338; Quincy Coal Co. v. Hood, 77 II. 68; Thompson v. Chicago &c. R. Co., 104 Fed. Rep. 845. Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406. 40 In re California Nav. &c. Co., 110 Fed. Rep. 678; Chicago v. Keefe, 114 Ill. 222 (brothers and sisters of minor-not ruled as matter of law that no damages were sustained); Economy Light &c. Co. v. Stephens, 187 Ill. 137; s. c. 58 N. E. Rep. 359; aff'g s. c. 87 Ill. App. 220; Chicago &c. R. Co. v. Morris, 26 Ill. 400, 403; Cherokee &c. Min. Co. v. Limb, 47 Kan. 469; s. c. 28 Pac. Rep. 181; Rouse v. Detroit &c. R. Co., 128 Mich. 149; s. c. 8 Det. Leg. N. 577; 87 N. W. Rep. 68; Texas &c. R. Co. v. Brown, 14 Tex. Civ. App. 697; s. c. 39 S. W. Rep. 140. See Dickens v. New York &c. R. Co., 1 Abb. App. Dec. (N. Y.) 504. Such pecuniary damage will be presumed in the case of an action for the benefit of a widow and children: Dunhene v. Ohio Life Ins. Co., 1 Disney (Ohio) 257. Also, in the case of a suit for the death of a minor, for the benefit of parents: Chicago v. Scholten, 75 Ill. 468; Condon v. Great Southern R. Co., 16 Ir. C. L. (N. S.) 415; and see Baltimore &c. R. Co. v. Kelly, 24 Md. 271. But see Bell v. Wooten, 53 Ga. 684; Allen v. Atlanta St. R. Co., 54 Ga. 503; Ihl v. Forty-second St. &c. R. Co., 47 N. Y. 317. And in the case of the death of a minor child, his parents are entitled to damages for the loss of his services until he would have come of age: Rockford &c. R. Co. v. Delaney, 82 Ill. 198; McGovern v. New York &c. R. Co., 67 N. Y. 417. And, in some cases, for damages for services he would have rendered after that time: Potter v. Chicago &c. R. Co., there is no evidence that the beneficiary was receiving any pecuniary benefits from the deceased at the time of his death, or that he had any reasonable expectancy of doing so in the future. 41 This fact of pecuniary benefit does not require definite and exact proof; but, wherever there exists a reasonable probability of pecuniary benefit to one from the continuing life of another, however arising, the untimely extinction of that life raises a presumption of pecuniary injury. Thus, the children of one whose death has been caused by the negligence of another may maintain an action for the damage caused thereby, although they are married and did not reside with the deceased, if they had a reasonable expectancy of pecuniary advantage from his continued living. So, although the sums given by the de 21 Wis. 372; s. c. 22 Wis. 615. See Seaman v. Farmers' Loan &c. Co., 15 Wis. 578, where it was asked that the jury be instructed to consider, in mitigation of damages, the probability of the marriage at the age of eighteen, of a young lady whose death was the cause of action. Missouri &c. R. Co. v. Freeman (Tex. Civ. App.), 73 S. W. Rep. 542; St. Louis &c. R. Co. v. Johnston, 78 Tex. 536; s. c. 15 S. W. Rep. 104. Where decedent, whose death was alleged to have been caused by defendant's negligence, was more than 57 years old, and was being supported by plaintiffs, who were his children, and it appeared that he did no work, and did not contribute to the support of the family, but only carried the dinners for his sons, etc., for which he was given his food and clothes, plaintiffs had no pecuniary interest in decedent's life, for which they would be entitled to recover: Proctor v. San Antonio R. Co., 26 Tex. Civ. App. 148; s. c. 62 S. W. Rep. 939. In an action by an administrator for the death of his intestate, under Burns' Rev. Ind. St. 1901, § 285, providing that the damages must inure to the exclusive benefit of the widow and children, if any, or next of kin, of deceased, it appeared that deceased was thirtytwo years of age and left as his sole heirs at law two older brothers, who were able to support themselves, and to whose support deceased had not contributed. There was no evidence of a deprivation of a pecuniary advantage which the brothers had reasonable ground to anticipate from their kinship with the deceased. It was held that the admin istrator was not entitled to any damages whatever: Wabash R. Co. v. Cregan, 23 Ind. App. 1; s. c. 54 N. E. Rep. 767. 42 McKay v. New England Dredging Co., 92 Me. 454; s. c. 43 Atl. Rep. 29; Baltimore &c. R. Co. v. State, 63 Md. 135 (death of mother who had assisted in care of daughter's home, whereby the daughter was enabled to go out to work); Mason v. Southern R. Co., 58 S. C. 70; s. c. 36 S. E. Rep. 440 (death of child-pecuniary loss need not be shown). Where deceased left a parent entitled to his services, the law implies pecuniary loss for which compensation may be given: Stafford v. Rubens, 115 Ill. 196; s. c. 1 West. Rep. 640. 43 Lockwood v. New York &c. R. Co., 98 N. Y. 523 (mere fact that children are of full age, and living apart from parents and supporting themselves, does not show that no damages were sustained); Schnatz v. Philadelphia &c. R. Co., 160 Pa. St. 602; s. c. 34 W. N. C. (Pa.) 290; 28 Atl. Rep. 952. The daughters of one whose death has been caused by the negligence of a railroad company are entitled, although they do not reside with her, to recover upon proof that for years, with almost unbroken regularity, two of them had spent the summer with her, for which she made no charge, and that i for sixteen years she sent regularly to another the potatoes used in her house, for which she paid nothing, and that she nursed such daughter at times in illness, did sewing for her, and performed like services, under Pa. Act April 4, 1868, providing that in such cases only such compensation for loss and damage ceased to the support of his daughter were given gratuitously, at irregular intervals and in irregular sums, the jury may yet find that she was damaged by his death.** 46 7051. Death of Children of Tender Years.-Damages may be recovered for the death of an infant child,45 and some of the States have by statute given this right. Under some recent holdings, however, the action will not lie for the death of a prematurely born child as the result of negligence preceding its birth. § 7052. Widow Entitled to Entire Recovery under Certain Circumstances.-Under the Wisconsin statute, the widow is entitled to all damages recovered by the personal representative of the deceased for his wrongful death; and damages to the children are not allowed where the widow survives. 49 Under the Illinois statute, giving a right of action to the personal representative of a deceased person whose death was caused by the wrongful act of another, and directing that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the decedent in the proportion provided for the distribution of personal property,50-where a decedent leaves a widow and no children, the widow is entitled to the whole of his personal estate, and the action may be prosecuted for her exclusive benefit and the amount recovered be distributed to her.51 § 7053. Common-Law Wife.-In States where the validity of a common-law marriage is recognized, the wife by such marriage and shall be recovered as the evidence shall clearly prove to have been pecuniarily suffered or sustained: Schnatz v. Philadelphia &c. R. Co., 160 Pa. St. 602; s. c. 28 Atl. Rep. 952; 34 W. N. C. (Pa.) 290. 44 Texas &c. R. Co. v. Martin, 25 Tex. Civ. App. 204; s. c. 60 S. W. Rep. 803. 45 Oldfield v. New York &c. R. Co., 3 E. D. Smith (N. Y.) 103; Chicago v. Major, 18 Ill. 349; Quin v. Moore, 15 N. Y. 432; McMahon v. New York, 33 N. Y. 642; Ihl v. Forty-second St. R. Co., 47 N. Y. 317; Louisville &c. R. Co. v. Connor, 9 Heisk. (Tenn.) 19. But in Georgia, where the doctrine that the action is based on a loss of service is closely adhered to, a recovery will be denied where the child was of such tender years that the court will take judicial notice of its incapacity to render service: Atlanta &c. St. R. Co. v. Arnold, 100 Ga. 566; s. c. 28 S. E. Rep. 224. 40 Muldowney v. Illinois &c. R. Co.,. 36 Iowa 462; Frank v. New Orleans &c. R. Co., 20 La. An. 25. 47 Dietrich v. Northampton, 138 Mass. 14; s. c. 52 Am. Rep. 242; Gorman v. Budlong, 23 R. I. 169; s. c. 49 Atl. Rep. 704. See also, Allaire v. St. Luke's Hospital, 184 Ill. 359; s. c. 56 N. E. Rep. 638; 48 L. R. A. 225; aff'g s. c. 76 Ill. App. 441; Walker v. Great Northern &c. Co., L. R. 28 Ir. 69; Earl of Bedford's Case, 8 Coke 8b. 48 Schmidt v. Deegan, 69 Wis. 300; s. c. 34 N. W. Rep. 83. 49 Abbot v. McCadden, 81 Wis. 563; s. c. 51 N. W. Rep. 1079; Schadewald v. Milwaukee &c. R. Co., 55 Wis. 559. 50 Hurd's Rev. Ill. Stat., ch. 70. 51 Mattoon Gaslight &c. Co. v. Dolan, 105 Ill. App. 1. her children may recover damages for the death of the husband as though the marriage had been duly solemnized under license.52 54 $7054. Effect of Divorce and Separation. The widow is not prevented from maintaining an action for the death of her husband by negligence, by the fact that she is living in separation from him,53 unless she has forfeited the right to support from him by leading an abandoned life. Nor will a child be prevented from recovering for the death of his father by the fact that the father had lived away from home for many years and had not contributed anything to the support of his wife or child.55 The action for the death of a child. may be brought by the mother after divorce, where the custody of the child has been awarded to her by the decree.56 The rule obtains in most jurisdictions that the wife may maintain an action for the death of her child without joining her husband, where he had de-serted her and her family and ceased to contribute to their support.57 $7055. Parents and Collateral Relatives Not Included in Term "Heirs."-The word "heirs" in statutes designating beneficiaries in the action for wrongful death means lineal descendants, and does not include parents or collateral relatives. 58 Galveston &c. R. Co. v. Cody, 20 Tex. Civ. App. 520; s. c. 50 S. W. Rep. 135. Dallas &c. R. Co. v. Spicker, 61 Tex. 427; s. c. 48 Am. Rep. 297; De Garcia v. San Antonio &c. R. Co., -Tex. Civ. App. —; s. c. 77 S. W. Rep. 275; Houston &c. R. Co. v. Bryant, 31 Tex. Civ. App. 483; s. c. 72 S. W. Rep. 885 (question for jury whether wife had abandoned husband with the purpose of never returning). "Ft. Worth &c. R. Co. v. Floyd (Tex. Civ. App.), 21 S. W. Rep. 544. An allegation in a petition by children, in an action under such statute, that the widow of the deceased was at the time of his death separated from him, and living in open adultery with another man, does not show a right of action in plaintiffs, and especially where the action was commenced in such time that it might be finally determined before the expiration of the one year with in which an action may be brought under the statute, since, even if proof of such facts might defeat the recovery of damages by the widow, it would not destroy her right of action, and, moreover, an adjudication of such facts in an action to which she was not a party would not be conclusive against her in a subsequent action: Cole v. Mayne, 122 Fed. Rep. 836. 55 Baltimore &c. R. Co. v. State, 81 Md. 371; s. c. 32 Atl. Rep. 201. See St. Louis &c. R. Co. v. McCain, 67 Ark. 377; s. c. 55 S. W. Rep. 165, where father divorced from mother contributed something to support of children. 50 Wilson v. Banner Lumber Co., 108 La. 590; s. c. 32 South. Rep. 460. 57 Delatour v. Mackay, 139 Cal. 621; s. c. 73 Pac. Rep. 454; Amos v. Atlanta R. Co., 104 Ga. 809; s. c. 31 S. E. Rep. 42; Kerr v. Pennsylvania R. Co., 169 Pa. St. 95; s. c. 36 W. N. C. (Pa.) 325; 32 Atl. Rep. 96; Missouri &c. R. Co. v. Henry, 75 Tex. 220; s. c. 12 S. W. Rep. 828; Clark v. Northern Pac. R. Co., 29 Wash. 139; s. c. 69 Pac. Rep. 636. In case of separation without divorce, the rule in Georgia allows the widow using the wages of her minor son, to bring the action for the death of such son in her own name and in the name of her husband for her use: East Tennessee &c. R. Co. v. Malloy, 77 Ga. 237; s. c. 2 S. E. Rep. 941. 58 Hindry v. Holt, 24 Colo. 464; s.. c. 51 Pac. Rep. 1002; 39 L. R. A. 351;. 61 § 7056. Whether Father or Mother Meant by Term "Parent."The word "parent" as used in the statute to designate the beneficiary is usually construed to mean the father if the deceased left a surviving father.59 If the deceased left no surviving father, then the mother will take under the designation;60 but the fact of the death of the father must be shown affirmatively. In States where the action may be prosecuted by the mother in case of the death or desertion of the father, it is not necessary for the mother to be joined with the father in the action.62 Under the Georgia statute providing that "the mother, or, if no mother, the father," may recover for the homicide of a supporting child, the father has no right of action if the mother was living at the time of the homicide.63 § 7057. Who Included in the Term "Children”—Illegitimate Children. Under the rule requiring the strict construction of statutes in derogation of the common law, the term "children" in the death statutes has been held to exclude grandchildren and stepchildren.65 The term intends only legitimate children, and hence does not generally include children born out of wedlock." Peterman v. Northern Pac. R. Co., 105 Fed. Rep. 335; Vaughn v. Bunker Hill &c. Min. Co., 126 Fed. Rep. 895; Harris v. Kentucky Timber &c. Co., 19 Ky. L. Rep. 1732; s. c. 45 S. W. Rep. 94; denying rehearing of s. c. 43 S. W. Rep. 462 (no off. rep.); Henning v. Louisville Leather Co., 11 Ky. L. Rep. 544; s. c. 12 S. W. Rep. 550 (no off. rep.); Jordan v. Cincinnati &c. R. Co., 89 Ky. 40; s. c. 11 Ky. L. Rep. 204; 11 S. W. Rep. 1013; Kentucky &c. R. Co. v. McGinty, 12 Ky. L. Rep. 482; s. c. 14 S. W. Rep. 601 (no off. rep.); Pennsylvania Co. v. Malia, 20 Ky. L. Rep. 1623; s. c. 49 S. W. Rep. 809 (no off. rep.); Lintz v. Holy Terror Min. Co., 13 S. D. 489; s. c. 83 N. W. Rep. 570; Nesbitt v. Northern Pac. R. Co., 22 Wash. 698; s. c. 61 Pac. Rep. 141; Noble v. Seattle, 19 Wash. 133; s. c. 52 Pac. Rep. 1013; 40 L. R. A. 133. 50 Grimsley v. Hankins, 46 Fed. Rep. 400; Gann v. Worman, 69 Ind. 458; Amos v. Mobile &c. R. Co., 63 Miss. 509. Under N. Y. Code Civ. Proc., 1903, providing that damages recovered in an action for causing death by negligence are for the benefit of decedent's husband or wife and next of kin, the right of action for an unmarried son's death belongs to the father, where the mother is dead and there are no heirs or next of kin: Doyle v. New York &c. R. Co., 66 App. Div. (N. Y.) 398; s. c. 72 N. Y. Supp. 936; Coghlan v. Third Avenue R. Co., 16 Misc. (N. Y.) 677; s. c. 25 Civ. Proc. (N. Y.) 249; 39 N. Y. Supp. 113, 1098. 60 Natchez &c. R. Co. v. Cook, 63 Miss. 38; Lee v. Knapp, 155 Mo. 610; s. c. 56 S. W. Rep. 458. 61 St. Louis &c. R. Co. v. Yocum, 34 Ark. 493. 62 Pierce v. Connors, 20 Colo. 178; s. c. 37 Pac. Rep. 721. 63 Frazier v. Georgia R. &c. Co., 96 Ga. 785; s. c. 22 S. E. Rep. 936. 64 Walker v. Vicksburg, 110 La. 718; s. c. 34 South. Rep. 749; Houston &c. R. Co. v. Harris (Tex. Civ. App.), 64 S. W. Rep. 227; Dallas &c. R. Co. v. Elliott, 7 Tex. Civ. App. 216; s. c. 26 S. W. Rep. 455. For the definition of the world "child," see Pittsburgh &c. R. Co. v. Vining, 27 Ind. 513. es Marshall v. Macon Sash &c. Co., 103 Ga. 725; s. c. 41 L. R. A. 211; 30 S. E. Rep. 571. 6 Marshall v. Wabash R. Co., 46 Fed. Rep. 269; Robinson v. Georgia R. &c. Co., 117 Ga. 168; s. c. 43 S. E. Rep. 452; McDonald v. Pittsburgh |