44 $7084. Damages for Death of Parent.-The number of years the parent would probably have lived but for the injury, and the reasonable expectancy of the amount of his property being increased and of pecuniary benefit to his children by way of support or otherwise, are proper elements of damages for consideration in an action for his death by the negligent act of another.43 Where children in no manner dependent on their father seek to recover for his death, their recovery must be limited to the sum which he by his personal exertions, less his necessary expenses and those of his wife, during her life, would have added to his estate and which would have descended to them as heirs at law. The jury may also take into consideration the value of the services of the deceased in the attention to, and care, supervision and education of his minor children, of which they have been deprived by his death. But these damages must be established by clear proof; and it must be shown that the parent was fitted to furnish such training. This will of course not justify an allowance of damages for occasional assistance rendered by the parent to his children in their studies, the rule contemplating continued and careful supervision; nor is the rule applicable to paternal advice and guidance to adult children. It is to be presumed that a parent will support and educate his children as a matter of duty; and hence there is no impropriety in an instruction authorizing damages for "such an amount as the deceased, if he had lived, would have ex-pended" for their education.50 47 45 49 Tuteur v. Chicago &c. R. Co., 77 Wis. 505; s. c. 46 N. W. Rep. 897. "Denver &c. R. Co. v. Spencer, 27 Colo. 313; s. c. 1 Colo. Dec. 870; 61 Pac. Rep. 606. "St. Louis &c. R. Co. v. Haist, 71 Ark. 258; s. c. 72 S. W. Rep. 893; Green v. Southern California R. Co. (Cal.), 67 Pac. Rep. 4; Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562; S. c. 64 N. E. Rep. 1109; Howard Co. v. Legg, 93 Ind. 523; s. c. 47 Am. Rep. 390; Stoher v. St. Louis &c. R. Co., 91 Mo. 509; Tilley v. Hudson River R. Co., 29 N. Y. 252; 8. c. 86 Am. Dec. 297; Sternfels v. Metropolitan St. R. Co., 174 N. Y. 512; s. c. 66 N. E. Rep. 1117; aff'g 8. c. 73 App. Div. (N. Y.) 494; 77 N. Y. Supp. 309; St. Louis &c. R. Co. v. Bowles, 32 Tex. Civ. App. 118; s. c. 72 S. W. Rep. 451; Gulf &c. R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Rep. 592; Hoadley v. International Paper Co., 72 Vt. 79; s. c. 47 Atl. Rep. 169; Searle v. Kanawha &c. R. Co., 32 W. Va.. 370; s. c. 9 S. E. Rep. 248. 46 Illinois &c. R. Co. v. Weldon, 52 Ill. 290. See also, Chicago &c. R. Co. v. Austin, 69 Ill. 426; Walker v. Lake Shore &c. R. Co., 104 Mich. 606; s. c. 62 N. W. Rep. 1032; 2 Det. Leg. N. 34; McIntyre v. New York &c. R. Co., 37 N. Y. 287; Mitchell v. New York &c. R. Co., 2 Hun (N. Y.) 535; s. c. 5 Thomp. & C. (N. Y.) 122; Tilley v. Hudson River R. Co., 29 N. Y. 252. 47 St. Louis &c. R. Co. v. Townsend, 69 Ark. 380; s. c. 63 S. W. Rep. 994; North Chicago St. R. Co. v. Irwin, 202 Ill. 345; s. c. 66 N. E. Rep. 1077; rev'g s. c. 104 Ill. App.. 150. 48 Walker v. Lake Shore &c. R. Co., 111 Mich. 518; s. c. 3 Det. Leg. 11. 775; 69 N. W. Rep. 775. 40 Baltimore &c. R. Co. v. Golway, 6 App. Cas. (D. C.) 43; s. c. 23. Wash. L. Rep. 308. 50 Galveston &c. R. Co. v. Puente, § 7085. Damages for Death of Husband.-The measure of damages for the death of a husband or father to those dependent on such deceased for support, is the loss of the support to the survivors, as well as what deceased would have accumulated had he lived, having reference to his age, occupation, habits, health, ability and expectancy of life;51 and as we have already seen that a wife is not deprived of her character as a beneficiary by the fact of living apart from her husband,52 a widow will be entitled to recover the full value of her husband's life although she and he were living in a state of separation at the time of his death.58 The recovery by a widow for the loss of her means of support by the death of her husband while intoxicated with liquor furnished by the defendant, may not be diminished on account of gifts to her from minor children during her husband's lifetime.54 § 7086. Damages for Death of Wife.-Ordinarily the husband is only entitled to recover in this class of action for the loss of his wife's services.55 But in Illinois, the husband suing as administrator for the negligent killing of his wife may recover for the pecuniary injury resulting to himself from her death; and the damages are not limited to the pecuniary injuries resulting to her next of kin, under the liberal construction placed upon the statute by the courts of that State.50 In Virginia the jury, in an action by a husband for the death of his wife, are not limited to the pecuniary loss merely, but may take into consideration the improved habits and pecuniary affairs of the husband since his marriage.57 30 Tex. Civ. App. 246; s. c. 70 S. W. Rep. 362. 51 Railway Co. v. Sweet, 60 Ark. 550; s. c. 31 S. W. Rep. 571; Hayes v. Williams, 17 Colo. 465; s. c. 30 Pac. Rep. 352; Cox v. Wilmington City R. Co. (Del.), 53 Atl. Rep. 569; Hogue v. Chicago &c. R. Co., 32 Fed. Rep. 365; Florida Cent. &c. R. Co. . v. Foxworth, 41 Fla. 1; s. c. 25 South. Rep. 338; Lake Erie &c. R. Co. v. Mugg, 132 Ind. 168; s. c. 31 N. E. Rep. 564; Clapp v. Minneapolis &c. R. Co., 36 Minn. 6; s. c. 29 N. W. Rep. 340; Jones v. Kansas City &c. R. Co., 178 Mo. 528; s. c. 77 S. W. Rep. 890; Missouri &c. R. Co. v. Hines (Tex. Civ. App.), 40 S. W. Rep. 152; Bauer v. Richter, 103 Wis. 412; s. c. 79 N. W. Rep. 404; Lawson v. Chicago &c. R. Co., 64 Wis. 447; Lierman v. Chicago &c. R. Co., 82 Wis. 286; s. c. 52 N. W. Rep. 91. 52 See ante, § 7054. 53 Central &c. R. Co. v. Bond, 111 Ga. 13; s. c. 36 S. E. Rep. 299. 54 McMahon v. Sankey, 35 Ill. App. 341. 55 Nelson v. Lake Shore &c. R. Co., 104 Mich. 582; May v. West Jersey &c. R. Co., 62 N. J. L. 63; s. c. 42 Atl. Rep. 163; Earl v. Tupper, 45 Vt. 275; St. Louis &c. R. Co. v. Hen. son, 58 Fed. Rep. 531; s. c. 7 C. C. A. 349. 66 Cleveland &c. R. Co. v. Baddeley, 150 Ill. 328; s. c. 36 N. E. Rep. 965; aff'g s. c. 52 Ill. App. 94. Simmons v. McConnell, 86 Va. 494; s. c. 14 Va. L. J. 106; 10 S. E. Rep. 838. $7087. In Case of Death of Infant.-Where the action is brought by the parent for the death of a minor child, the proper measure of damages is the value of the child's services from the time of the injury until the time he would have attained his majority, less the expense necessary for his support and maintenance, taking into consideration the likelihood of his living to attain his majority.58 In arriving at the amount of damages the jury may take into consideration the condition of the family with reference to the child, so far as it bears upon the pecuniary loss caused by the loss of the child's services. In an action of this character, it is no defense that the child might have spent his time in idleness if he had not been killed, nor that the parent might have given him his time; as the parent is entitled to such services as a matter of right, and it is not a matter of concern to one sued for wrongful death what disposition the parent might have made of the son's time;60 nor is it a matter of defense that the infant at the time of his death was using all his earnings for his own purposes, where the arrangement was not permanent and he had not been emancipated ;61 nor may it be urged as a defense that the parent has other surviving children to whom she may look for support, since such parent has a legal recourse against any one of the children alone for her entire maintenance.62 *St. Louis &c. R. Co. v. Freeman, 36 Ark. Rep. 41; Pierce v. Conners, 20 Colo. 178; Zimmerman v. Denver Consol. Tramway Co., 18 Colo. App. 480; s. c. 72 Pac. Rep. 607: Bunyea v. Metropolitan R. Co., 8 Mack. (D. C.) 76; Chicago v. Hesing. 83 Ill. 205; Chicago v. Scholten, 75 l. 469; Rockford &c. R. Co. v. Delancy, 82 Ill. 198; Elwood v. Addison, 26 Ind. App. 28; s. c. 59 N. E. Rep. 47; Benton v. Chicago &c. R. Co., 55 Iowa 496; Agricultural &c. Assn. v. State, 71 Md. 86; s. c. 18 Atl. Rep. 37; Snyder v. Lake Shore &c. R. Co., 131 Mich. 418; s. c. 91 N. W. Rep. 643; 9 Det. Leg. N. 359; Parsons v. Missouri Pac. R. Co., 94 Mo. 286; s. c. 12 West. Rep. 615; 6 S. W. Rep. 464; Graham v. Consolidated Traction Co., 64 N. J. L. 10; s. c. 44 Atl. Rep. 964; Ford V. Monroe, 20 Wend. (N. Y.) 210; Lehman v. Brooklyn, 29 Barb. (N. Y) 234; Quin v. Moore, 15 N. Y. 432; Russell v. Windsor Steamboat Co., 126 N. C. 961; s. c. 36 S. E. Rep. 191: Birmingham v. Dorer, 3 Brewst. (Pa.) 69; Caldwell Brown, 53 Pa. St. 453; Madara v. Pottsville Iron &c. Co., 160 Pa. St. V. 109; Pennsylvania &c. R. Co. v. Bantom, 54 Pa. St. 495; Cole v. Parker (Tex. Civ. App.), 66 S. W. Rep. 135; Barley v. Chicago &c. R. Co., 4 Biss. (U. S.) 430. A verdict for nominal damages only can be recovered by the father for the death of a son who had attained his majority, although he had lived with his father thereafter and was strong, healthy and a good laborer: Smith v. Chicago &c. R. Co., 6 S. D. 583; s. c. 28 L. R. A. 573; 62 N. W. Rep. 967. 50 Elwood v. Addison, 26 Ind. App. 28; s. c. 59 N. E. Rep. 47; Louisville &c. R. Co. v. Rush, 127 Ind. 545; s. c. 26 N. E. Rep. 1010; Grogan v. Broadway Foundry Co., 87 Mo. 321; Cincinnati &c. R. Co. v. Altemeier, 60 Ohio St. 10; s. c. 53 N. E. Rep. 300. * Luessen V. Oshkosh Electric Light &c. Co., 109 Wis. 94; s. c. 85 N. W. Rep. 124. But see Chicago v. McCulloch, 10 Ill. App. 459. 63 § 7088. Further of Measure of Damages for Death of Infant.Under a rule already referred to, damages for the loss of a child are restricted to the actual pecuniary loss sustained, excluding all sentimental considerations, such as loss of society, comfort, etc. In an early New York case it was held, in an action for the death of a child, that the plaintiff could recover not only for the loss of the services of the child, but also for the expense occasioned by the sickness of the plaintiff's wife, caused by the shock to her maternal feelings, such expense being laid as special damages in the declaration. In a later case in the same State, this language is used: "The interest which the next of kin have in the life of a person negligently killed is pecuniary. In the present action, the next of kin to whom compensation is to be made, for the pecuniary injury, is the father. The jury estimated this pecuniary injury at $1,500; that is, that the plaintiff in this action was the pecuniary loser of $1,500 by the accident. The child was four years and one month old when he died. For the next ten years, had he lived, it may be safely said that he would have been a burden in place of a benefit, pecuniarily, to his parents. And for the next seven years after that, if educated to a profession or mercantile calling, or put to a trade, he would have done well-much better than the majority of lads-if he supported himself. During all this time he would be exposed to disease and death, and the other ills which beset human life in all its stages. The life of this little boy, however priceless may have been its value in other aspects, had no pecuniary value which the jury could justly estimate at $1,500. If the plaintiff recovered at all, the damages should have been nominal." As is very evident, the result of this reasoning is that no considerable pecuniary damages can be recovered for the death of a minor child if the circumstances justify compensatory damages only, because, in any event, the cost of his maintenance until he attains his majority will likely equal, if not exceed, his earnings. But the decisions do not sustain this view. In an Illinois case, where the deceased was less than four years old, the court refused to disturb a verdict of $800. ceased was a minor and left a father, 6 Ante, § 7082. Chicago Consol. Bottling Co. v. Tietz, 37 Ill. App. 599; Mobile &c. R. Co. v. Walty, 69 Miss. 145; Sciurba v. Metropolitan St. R. Co., 73 App. Div. (N. Y.) 170; s. c. 76 N. Y. Supp. 772; Houston &c. R. Co. v. Cowser, 57 Tex. 293; Taylor &c. R. Co. v. Warner, 84 Tex. 122. Say the court: "Where the dewho would have been entitled to But see Quill v. Southern Pac. Co., 140 Cal. 268; s. c. 73 Pac. Rep, 991; Beaman v. Martha Washington Min. Co., 23 Utah 139; s. c. 63 Pac. Rep. 631. 65 Ford v. Monroe, 20 Wend. (N. Y.) 210. 66 Lehman v. Brooklyn, 29 Barb. (N. Y.) 234. his services had he lived, the law implies a pecuniary loss, for which compensation under the statute may be given.”67 §7089. Expectation of Pecuniary Benefits from Child After Attaining Majority. The jury is not restricted to the child's minority, but may consider whether the child, after becoming of age, would not have been led by natural affection to continue to contribute to the support of his parents;s and parents suing for the death of a son are entitled to recover not only the pecuniary value of his services up to his majority after deducting the cost of his maintenance for the same period, but also such sum as would be equal to the pecuniary benefits the parents had a reasonable expectation of receiving after he reached the age of twenty-one years. So, it does not follow that the Chicago v. Hesing, 83 Ill. 207. See also, Chicago v. Major, 18 Ill. 349; West Chicago St. R. Co. v. Scanlan, 68 Ill. App. 626; s. c. 2 Chic. L. J. Wkly. 113; s. c. aff'd, 168 Ill. 34; 48 N. E. Rep. 149. In another case in the same State, where the action was for the death of a boy between six and seven years of age, a verdict for $2,000 was sustained: Chicago &c. R. Co. v. Becker, 84 Ill. 483. In Tennessee, a verdict for $3,000 for the death of an infant child, eighteen months old, was sustained: Louisville &c. R. Co. v. Connor, 9 Heisk. (Tenn.) 20. Under S. Car. Rev. Stat. 1893, 2316, providing that the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties for whom such action shall be brought, a pecuniary loss need not be shown in an action for death of an infant: Mason v. Southern R. Co., 58 S. C. 70; s. c. 36 S. E. Rep. 440. It is not necessary to show any pecuniary advantage derived from a minor child whose death was negligently caused, in order to entitle the parent to recover; but it is sufficient if there is evidence to justify the conclusion that there is a reasonable expectation of pecuniary benefit in the future, capable of being estimated: Ricketts v. Markdale, 31 Ont. 610; Rombough v. Balch, 27 Ont. App. 32. .69 Rep. 793; St. Louis &c. R. Co. v. Neb. -; s. c. 95 N. W. Rep. 1026; Morhart v. North Jersey St. R. Co., 64 N. J. L. 236; s. c. 45 Atl. Rep. 812; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; s. c. 18 N. E. Rep. 108; Connaughton V. Sun Printing &c. Assn., 73 App. Div. (N. Y.) 316; s. c. 76 N. Y. Supp. 755; Cole v. Parker, 27 Tex. 563; s. c. 66 S. W. Rep. 135; Gulf &c. R. Co. v. Compton, 75 Tex. 667; s. c. 13 S. W. Rep. 667; Fort Worth &c. R. Co. v. Hyatt, 12 Tex. Civ. App. 435; s. c. 34 S. W. Rep. 677; 3 Am. & Eng. R. Cas. (N. S.) 397; Freeman v. Carter, 28 Tex. Civ. App. 571; s. c. 67 S. W. Rep. 527; Texas &c. R. Co. v. Harby. 28 Tex. Civ. App. 24: s. *Bessemer Land &c. Co. v. Camp- c. 67 S. W. Rep. 541; Brush Elec. bell, 121 Ala. 113; s. c. 25 South. Light &c. Co. v. Lefevre (Tex. Civ. Connaughton v. Sun Printing &c. Assn., 73 App. Dív. (N. Y.) 316; &. c. 76 N. Y. Supp. 755. |