is given to a certain class of persons, and, in case there are no persons in such class, then to another defined class, and to succeeding classes on failure of beneficiaries in the preceding classes, the existence of the right of action in any of the named classes commencing with the second class is wholly dependent upon the fact whether there is no person in esse belonging to any one of the classes who are given by statute the precedent right over him to maintain the action.24

-Fla.; s. c. 34 South. Rep. 246. If the complaint fails to show the then existence of relatives entitled to benefit by the recovery, it is fatal

ly defective: Brown v. Chicago &c. R. Co., 102 Wis. 137.

24 Louisville &c. R. Co. v. Jones, Fla.; s. c. 34 South. Rep. 246.

7078. Duty of jury in estimating 7093. Nursing, medical attendance,

damages.

7079. Nominal damages.

7080. Exemplary damages.
7081. Exemplary damages under

Texas statute.

7082. Damages limited to pecuniary injury, allowing nothing by way of solatium.

7083. Remote and speculative damages not recoverable-Possibility of promotion, etc. 7084. Damages for death of parent. 7085. Damages for death of husband.

7686. Damages for death of wife. 7087. In case of death of infant. 7088. Further of measure of damages for death of infant.

7089. Expectation of pecuniary benefits from child after attaining majority.

funeral expenses, etc.

7094. Skill in the management of wealth as an element of damages.

7095. Sufferings of deceased as an
element of damages.

7096. Expense of finding body.
7097. Measure of damages under
Kentucky statute.

7098. Rule under Missouri statute.
7099. Annuity as basis of calcula-
tion.

7100. Duty of jury to consider present worth of recovery.

7101. Probable duration of life-
Mortality tables as evidence.
7102. Deduction of support and
other items.

7103. Mitigation of damages.
7104. Quantum of damages-Wheth-
er recovery is excessive.

7090. Damages recoverable by col- 7105. Quantum of damages-Whethlateral relatives not depender damages are adequate.

7076. Statutory Limitations on Amount of Recovery. The earlier statutes of most of the States contained provisions which placed arbitrary limitations on the amount recoverable for death by wrongful act. No sufficient reason for this particular bent of the legislative mind has ever been advanced. More recently the tendency of enactments has been in the direction either of increase in the maximum amount, or the entire repeal of the limiting provision.1

1 The following list shows the condition of statutes with reference to

fixed limitations on the amount of the recovery: Alabama: Unlimited;

$7077. Constitutional Provisions Against Limitation of Recovery-In New York and Pennsylvania, constitutional provisions removing restrictions on the amount. recoverable in actions for wrongful death have been ratified by the people. The Supreme Court of Pennsylvania has construed the constitutional provision adopted by the people of that State to be inapplicable to the Pennsylvania Railroad Company, on the ground that this corporation had "accepted" the provision of an earlier statute limiting the amount of the recovery to $5,000. What a tribute to the power of this great corporation! Can it be possible that it could have refused to "accept" the provision of any lawful statute that did not meet with its approval? This contemptible decision is but an example of many decisions encountered in the preparation of these pages showing a lamentable judicial inclination where one of the litigants before the court was a great corporation. A more liberal rule of construction prevails in New York; and the courts in that State have held that the provision applied to one who was injured before such amendment took effect, but whose death occurred after it went into effect."

Arizona: $5,000; Arkansas: Unlimited; California: Unlimited; Colorado: $5,000; Delaware: Unlimited; Florida: Unlimited; Georgia: Full value of the life of deceased without deduction for necessary expenses of deceased had he lived; Idaho: Unlimited; Illinois: $5,000; Indian Territory: Unlimited; Indiana: $10,000; Iowa: Unlimited; Kansas: $10,000; Kentucky: Unlimited; Louisiana: Unlimited; Maine: $5,000; Maryland: Unlimited; Massachusetts: Not less than $500, nor more than $5,000; Michigan: Unlimited; Minnesota: $5,000; Mississippi: Unmited; Missouri: $5,000; Montana: Unlimited; Nebraska: $5,000; Netada: Unlimited; New Hampshire: $7,000; New Jersey: Unlimited; New York: Unlimited; North Carolina: Unlimited; North Dakota: Unlimited; Ohio: $10,000; Oklahoma: $10,000; Oregon: $5,000; Pennsyltania: Unlimited; Rhode Island: Unlimited; South Carolina: Unlimited; Tennessee: Unlimited; Texas: Unlimited; Utah: Unlimited; Vermont: Unlimited; Virginia: $10,000; Washington: Unlimited; West Virginia: $10,000; Wisconsin: $5,000; Wyoming: Unlimited.

*N. Y. Const. 1895, art. 1, § 18. 'Pa. Const. 1874, art. 3, § 21.

* Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21.

The statute of 1868, the "acceptance" of which had this amazing effect, attempted to limit the recovery in actions both for death and personal injury. In Street Railroad Co. v. Boudrou, 92 Pa. St. 475, the statute was declared unconstitutional in so far as it attempted to limit the recovery in actions for personal injury. In a still later case (Lewis v. Hollahan, 103 Pa. St. 125) it was held that the constitutional provision fully annulled the statute limiting the amount recoverable in case of death; and, while the court held that the Langdon case, supra, was well decided on other controlling questions, it hesitated to follow the case as authority.

Weber v. Third Ave. R. Co., 12 App. Div. (N. Y.) 512; s. c. 42 N. Y. Supp. 789; Smith v. Metropolitan St. R. Co., 15 Misc. (N. Y.) 158; s. c. 70 N. Y. St. Rep. 687; 35 N. Y. Supp. 1062. But the provision does not give a right to recover in excess of the statutory limitation existing at the time of its passage, for a death occurring before such time: O'Reilly v. Utah &c. Stage Co., 87 Hun (N. Y.) 406; s. c. 34 N. Y. Supp. 358.

§ 7078. Duty of Jury in Estimating Damages.-The damages in this class of action must depend very much on the good sense and sound judgment of the jury, upon all the facts and circumstances of each particular case. While it is not necessary for any witness to express an opinion as to the amount of pecuniary loss suffered by the survivors, the jury being allowed to make an estimate themselves from facts proved, yet their estimate must be based upon the facts in evidence;10 and they should be properly instructed as to the principles of law applicable to the facts before them.11 While it is not the province of the court to assess damages, or to say what is "reasonable and just compensation" for the pecuniary injury, it may express the extreme limit beyond which a verdict would be clearly wrong."

§ 7079. Nominal Damages.-In England, it is held that if there is no proof of actual damages, even nominal damages are not to be allowed;13 but in the United States, in such a case, nominal damages may be given.1 Thus, it has been held that the damages recoverable

for the negligent killing of a child five years old should not be restricted to a merely nominal sum, though the only evidence furnishing a basis for a determination as to the amount of damages was the age, sex and general intelligence of the deceased.15 Only nominal. damages can be recovered for the death of one from the continuance of whose life there can be no reasonable hope of future pecuniary benefit,15 as where the deceased was incapable of supporting himself by reason of habitual drunkeness.16

$7080. Exemplary Damages. As the damages are intended by the statute to be compensatory, usually exemplary damages should not be allowed unless their recovery is authorized by statute.17 In some states, notably Kentucky, California and Texas, the allowance of exemplary damages is expressly authorized by statute.18 In Mis