* * *

souri, the statute provides that, "in every such action, the jury may give such damages as they may deem fair and just, having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect, or default." Under this statute, the amount of damages is not limited to the actual pecuniary loss suffered in the death of a child; the court says that "such a construction would make the words [of the statute, italicized] wholly meaningless and inoperative."19 The Alabama statute allows a recovery "of such damages as the jury may assess"; and the courts of that State construe this statute to authorize exemplary damages. 20 In Tennessee, exemplary damages are recoverable against a railroad company for death resulting from gross negligence, whether the death was instantaneous or not.21 In States where these damages are allowed, their recovery must be specially demanded by proper averments in the complaint.22 The allowance of this character of damages, where authorized, is within the discretion of the jury; and this discretion cannot be coerced or controlled by the court in his instructions; and an instruction that if the negligence was gross or wanton, "you will make proper additions" by way of punitive damages, is open to objection on this ground.28

§ 7081. Exemplary Damages under Texas Statute.-The Texas statute giving a right of action for damages which result in death contains this provision: "And in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided amongst the person or persons entitled under this act, or such of them as shall be then alive, in such shares as the jury shall find and direct, and shall not be liable for the debts of the deceased."24 The damages

19 Gray v. McDonald, 104 Mo. 303; s. c. 16 S. W. Rep. 398; Owen v. Brockschmidt, 54 Mo. 285; Foppiano v. Baker, 3 Mo. App. 559, 560. Exemplary damages may be recovered from a railroad corporation for the wanton and malicious act of one of its employés in killing another, under Mo. Rev. Stat. 1889, §§ 4426, 4427: Haehl v. Wabash R. Co., 119 Mo. 325; s. c. 24 S. W. Rep. 737.

20 Richmond &c. R. Co. v. Freeman, 97 Ala. 289; s. c. 11 South. Rep. 800; Shannon v. Jefferson Co., 125 Ala. 384; s. c. 27 South. Rep. 977; Louisville &c. R. Co. v. Lansford, 102 Fed. Rep. 62; s. c. 42 C. C. A. 160 (passenger on train); McGhee v. McCarley, 103 Fed. Rep. 55; S.

c. 44 C. C. A. 252; rev'g on rehearing s. c. 91 Fed. Rep. 462.

21 Railway Co. v. Daughtry, 88 Tenn. 712; s. c. 13 S. W. Rep. 698. 22 Thus, in a suit by a mother to recover for the death of her minor son caused by negligence, if her petition does not allege the value of his services during his minority, her suit must be considered as brought wholly under the statute, and she cannot recover exemplary damages: Gulf &c. R. Co. v. Compton, 75 Tex. 667; s. c. 13 S. W. Rep. 667.

23 Louisville &c. R. Co. v. Satterwhite, Tenn.; s. c. 79 S. W. Rep. 103.

Pasch. Dig. Tex. Stat., art. 16.

given by this statute are measured by the pecuniary injury to the respective parties entitled to damages, including the loss of prospectire advantage.25 But the Constitution of Texas of 1876 went a step farther, and gave exemplary damages in such cases, by the following provision: "Every person, corporation or company that may commit a homicide through willful acts or omissions, or gross neglect, shall be responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide." But when both actual and exemplary damages are sought, they should be claimed by proper allegations in · the petition, in the nature of two distinct counts on different causes of action or cross action, with averments respectively appropriate to each remedy; these being essentially different in the facts necessary to be alleged and proven.27 Moreover, the court should, in its charge to the jury, lay down the rules of law applicable to the facts in evidence, which should govern them in the measure of exemplary damages; and where the testimony warrants a charge upon both actual and exemplary damages, the jury should be required to respond in separate verdicts, showing, if any, the amount of actual, and that of exemplary damages, which they may find.28 Where the court did not instruct the jury as to the distinction between actual and exemplary damages, or furnish them with any rules of law by which they should measure this damage, but the whole question was in general terms submitted to their uninstructed and unlimited discretion, and a verdict was rendered for the gross sum of $19,000, the judgment was reversed.20

$7082. Damages Limited to Pecuniary Injury, Allowing Nothing by Way of Solatium.-It has been almost universally held that the principle under which damages are to be assessed under these statutes is that of pecuniary injury, and not as a solatium. No compensation can be given for wounded feelings, or the loss of comfort and companionship of a relative.30 The leading case on this subject is Blake

* Marks v. Walker, 48 Tex. 372. *Tex. Const. 1876, art. 16, § 26. Railroad Co. v. Le Gierse, 51 Tex. 189, 203; following the practice indicated in Wallace v. Finberg, 46 Tex. 35.

Railroad Co. v. Le Gierse, 51 Tex. 189.

Railroad Co. v. Le Gierse, 51 Tex. 189, 203.

30 Alabama &c. R. Co. v. Burgess, 116 Ala. 509; s. c. 22 South. Rep. 913; James v. Richmond &c. R. Co., 92 Ala. 231; s. c. 9 South. Rep. 335; Louisville &c. R. Co. v. Jones, 130 Ala. 456; s. c. 30 South. Rep. 586; Little Rock &c. R. Co. v. Barker, 33 Ark. 350; Green v. Southern Pac. Co., 122 Cal. 563; s. c. 55 Pac. Rep. 577; Pepper v. Southern &c. R. Co.,

v. Midland Railway Company.1 This case has been frequently cited, and the priciple announced generally endorsed, by the courts of the United States.32 In some jurisdictions the rule has been relaxed;

and the courts therein allow the inclusion of such damages in the estimate of the pecuniary damages suffered, but refuse to allow such damages in addition to the pecuniary damages.33 In States where the statute allows the jury to award such damages as they may "think proportionate to the injury," the jury is not confined to the pecuniary loss, but may allow for loss resulting from grief or mental suffering of the beneficiaries. But the damages are not confined to an immediate loss of money to those for whose benefit the action is brought. Thus, the loss of the benefit of an education and the comforts and conveniences of life, depending upon the possession of pecuniary means to obtain them, through the death of a relative whose duty or habit it was to supply them, is an injury in respect of which an action may be maintained.35 So, the injury to a widow through the loss of her

Paulk, 24 Ga. 356; Chicago v. Har-
wood, 80 Ill. 88; Chicago v. Major,
18 II. 349; Chicago &c. R. Co. v.
Morris, 26 I. 400; Chicago &c. R.
Co. v. Shannon, 43 Ill. 338; Chicago
v. Scholten, 75 Ill. 468; Chicago &c.
R. Co. v. Swett, 45 Ill. 197; Conant
v. Griffin, 48 Ill. 410; Illinois &c. R.
Co. v. Baches, 55 Ill. 379; Illinois
&c. R. Co. v. Weldon, 52 Ill. 290;
Long v. Morrison, 14 Ind. 595; Ohio
&c. R. Co. v. Tindall, 13 Ind. 366;
Donaldson v. Mississippi R. Co., 18
Iowa 280; Covington St. R. Co. v.
Packer, 9 Bush (Ky.) 455; Paul-
mier v. Erie R. Co., 34 N. J. L. 151;
Telfer v. Northern R. Co., 30 N. J.
L 188; Green v. Hudson River R.
Co., 32 Barb. (N. Y.) 25; Lehman
V. Brooklyn, 29 Barb. (N. Y.) 234;
Kesler v. Smith, 66 N. C. 154; Cata-
wissa R. Co. v. Armstrong, 52 Pa.
St. 282; Huntingdon &c. R. Co. v.
Decker, 84 Pa. St. 419; North Penn-
sylvania R. Co. v. Robinson, 44 Pa.
St. 175; Pennsylvania R. Co. v. But-
ler, 57 Pa. St. 335; Pennsylvania R.
Co. v. Goodman, 62 Pa. St. 329;
Pennsylvania R. Co. v. McCloskey,
23 Pa. St. 526; Pennsylvania R. Co.
V. Ogier, 35 Pa. St. 60; Pennsyl-
vania R. Co. v. Vandiver, 36 Pa. St.
298; Pennsylvania R. Co. v. Zebe,
33 Pa. St. 318; Collier v. Arrington,
Phill. L. (N. C.) 356; Nashville &c.
R. Co. v. Stevens, 9 Heisk. (Tenn.)
12; March v. Walker, 48 ex. 372;
Barley v. Chicago &c. R. Co., 4 Biss.
(U. S.) 430; Brady v. Chicago, 4
Biss. (U. S.) 448. See also, James
v. Christy, 18 Mo. 162, and Hyatt v.
Adams, 16 Mich. 180. And see, con-

tra, Ravary v. Grand Trunk R. Co., 6 Low. Can. Jur. 49, and note; rev'g s. c. 1 Low. Can. Jur. 280. See also, Owen v. Brockschmidt, 54 Mo. 285; Morgan v. Durfee, 69 Mo. 469; Foppiano v. Baker, 3 Mo. App. 559; Wetherell v. Chicago City R. Co., 104 Ill. App. 357; Hughey v. Sullivan, 36 Ohio L. J. 247; Smith v. Chicago &c. R. Co., 6 S. D. 583; s. c. 28 L. R. A. 673; 62 N. W. Rep. 967.

33 Beeson v. Green Mountain Gold Min. Co., 57 Cal. 20; Cleary v. City R. Co., 76 Cal. 240; s. c. 18 Pac. Rep. 269; Dyas v. Southern Pac. Co., 140 Cal. 296; s. c. 73 Pac. Rep. 972; Harrison v. Sutter St. R. Co., 116 Cal. 156; s. c. 47 Pac. Rep. 1019; Keast v. Santa Ysabel Gold Min. Co., 136 Cal. 256; s. c. 68 Pac. Rep. 771; Lang v. Schoettler, 115 Cal. 388; s. c. 47 Pac. Rep. 139; Munro v. Pacific Coast &c. R. Co., 34 Cal. 515; s. c. 24 Pac. Rep. 303; Corbett v. Oregon Short Line R. Co., 25 Utah 449; s. c. 71 Pac. Rep. 1065.

4 brown v. Southern R. Co., 65 S. C. 260; s. c. 43 S. E. Rep. 794; Strother v. South Carolina &c. R. Co., 47 S. C. 375; s. c. 5 Am. & Eng. R. Cas. (N. S.) 430; 25 S. E. Rep. 272; Mathews v. Warner, 29 Gratt. (Va.) 570; Baltimore &c. R. Co. v. Noell, 32 Gratt. (Va.) 394, 403 (Virginia statute allows the jury to give such damages as to them seem "fair and just").

35 Pym v. Great Northern R. Co., 2 Best & S. 759; s. c. 31 L. J. (Q. B.) 249; s. c. aff'd, 4 Best & S. 396; 32 L. J. (Q. B.) 377.

husband's care, protection, support, and assistance may be considered in estimating damages.36

37

§ 7083. Remote and Speculative Damages Not Recoverable-Possibility of Promotion, etc.-It is required that the damages for which recovery is sought should be such as directly result from the death, and not such as are remote or speculative. There is general uniformity of holding by the courts that the mere possibility of promotion of the deceased in his particular line of service, without more, is too uncertain to be considered as an element of the damages recoverable for his death from negligence;38 and this is particularly the case where the decedent was in municipal service, and promotion was based on competitive civil-service examinations.39 But in one case where it was shown that the deceased had risen four grades in the service, and was strong and of healthy habits, it was held that the plaintiff could show the different grades of advancement above the position held by the deceased, and the jury could consider his prospects of advancement with increase of salary.40 Loss from the dissolution of a partnership by the wrongful death are included in the category of speculative damages. In the case of the wrongful death of a public officer, evidence of his income from the office is relevant to show particular loss for the unexpired term, but not to furnish a basis of direct computation for any longer period. 42

30 Atchison v. Twine, 9 Kan. 350. Under the Connecticut statute, the ground of damages is not the loss to the relatives of the deceased, but the injury to himself: Goodsell v. Hartford &c. R. Co., 33 Conn. 51; Murphy v. New York &c. R. Co., 29 Conn. 499. Accordingly, the plaintiff may recover damages for the pain and suffering endured by the deceased between the time of the injury and his death, if any appreciable time elapsed: Soule v. New York &c. R. Co., 24 Conn. 575. Elsewhere this doctrine has been denied: Donaldson v. Mississippi &c. R. Co., 18 Iowa 281.

"Thus, damages for an attack of bronchitis, claimed by a mother to have been caused by her nervous condition following the death of her son in a railway accident, are not recoverable in a suit by the son's administrator for wrongful death, since there is no necessary or probable connection between the neg

ligence which resulted in the death of the son and the nervous condition which resulted in the attack of bronchitis: Norfolk &c. R. Co. v. Stevens, 97 Va. 631; s. c. 34 S. E. Rep. 525; 46 L. R. A. 367.

3 Colorado Coal &c. Co. v. Lamb, 6 Colo. App. 255; s. c. 40 Pac. Rep. 251; Brown v. Chicago &c. R. Co., 64 Iowa 652. But see St. Louis &c. R. Co. v. Johnston, 78 Tex. 536; s. c. 15 S. W. Rep. 104.

"Geary v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 441.

40 Geary v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 441; s. c. 77 N. Y. Supp. 54.

41 Read v. Brooklyn Heights R. Co., 32 App. Div. (N. Y.) 503; s. c. 53 N. Y. Supp. 209; Demarest v. Little, 47 N. J. L. 28; McCracken v. Consolidated Traction Co., 201 Pa. St. 384; s. c. 50 Atl. Rep. 832.

42 Christian v. Columbus &c. R. Co., 90 Ga. 124; s. c. 15 S. E. Rep. 701.