mother of a woman killed by the negligence of a railroad company sustained no loss from the death of her married daughter, from the fact that the latter's only means of assisting her mother pecuniarily were derived from the earnings of her husband.70 But a vague declaration or promise of a minor to continue aiding his parent after reaching his majority, is without force under the stricter rule prevailing in Maryland." In Missouri it is held that an action will not lie against a railroad company at the instance of the parents of an adult son, to recover damages resulting from the prevention of the performance of a contract to support them, due to his death through the defendant's negligence, on the ground that the railroad company was not a party to the contract.72

§ 7090. Damages Recoverable by Collateral Relatives Not Dependent upon Deceased for Support.-The measure of damages for the wrongful killing of a person from whom the beneficiaries of the action have no right to claim support, is such a sum as the deceased would probably have earned in his business during his life and left as his estate, considering his age, ability, and disposition to labor, and his habits of living and expenditures."

App.), 55 S. W. Rep. 396 (no off. rep.); Gulf &c. R. Co. v. Brown (Tex. Civ. App.), 76 S. W. Rep. 794; Boyden v. Fitchburg R. Co., 70 Vt. 125; s. c. 10 Am. & Eng. R. Cas. (N. S.) 523; 39 Atl. Rep. 771; Johnson v. Chicago &c. R. Co., 64 Wis. 425; s. c. 25 N. W. Rep. 223; Thompson v. Johnston Bros. Co., 86 Wis. 576; s. c. 57 N. W. Rep. 298; Ricketts v. Markdale, 31 Ont. 610; Rombough v. Balch, 27 Ont. App. 32. In an action by a father for the negligent killing of his minor child, under Utah Rev. Stat. 1898, §§ 2911, 2912, authorizing such an action, the recovery of the parent for the pecuniary loss sustained in being deprived of the society, comfort, and protection of the child is not necessarily limited to the period of the child's minority, but the parent may recover for the benefits reasonably to be expected to be received by him after majority: Beaman v. Martha Washington, 23 Utah 139; s. c. 63 Pac. Rep. 631. Contra, see Walters v. Chicago &c. Co., 36 Iowa 458; State v. Baltimore &c. Co., 24 Md. 84: s. c. 87 Am. Dec. 600; Agricultural &c. Assn. v. State, 71 Md. 86; s. c. 18 Atl. Rep. 37; Cooper v. Lake Shore &c. R. Co., 66 Mich. 261; s. c.

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33 N. W. Rep. 306; Traction Co. v. White, 94 Tex. 468; s. c. 61 S. W. Rep. 706. Evidence that a child four and a half years of age was strong and healthy, and that the father had no property, and had a wife and four children, has been held insufficient to sustain a finding of damages, in an action for the death of such child, on the ground that there was reasonable expectancy of pecuniary benefit to the parents from the continuance of the life of the child beyond its minority: Decker v. McSorley, 111 Wis. 91; s. c. 86 N. W. Rep. 554.

70 Gulf R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Rep. 592 (no off. rep.).

"Agricultural &c. Assn. v. State, 71 Md. 86; s. c. 29 Cent. L. J. 250; 18 Atl. Rep. 37.

72 Brink v. Wabash R. Co., 160 Mo. 87; s. c. 60 S. W. Rep. 1058.

73 Crocker v. Pusey &c. Co., 3 Pen. (Del.) 1; s. c. 50 Atl. Rep. 61; Maxwell v. Wilmington City R. Co., 1 Marv. (Del.) 199; s. c. 40 Atl. Rep. 945; Neal v. Wilmington &c. R. Co., 3 Pen. (Del.) 467; s. c. 53 Atl. Kep. 338; Tully v. Philadelphia &c. R. Co., 3 Pen. (Del.) 455; s. c. 50 Atl. Rep. 95; Howard v. Delaware &c.

74

§ 7091. Expectation of Future Pecuniary Benefits.—In arriving at a conclusion the jury is not limited to actual damages which may be specifically proved, but may consider prospective damages and allow for anticipation of pecuniary benefit which the survivors have a reasonable ground to indulge, based on the continuance of life of the deceased. To determine the value of this expectancy, the jury may take into consideration the decedent's health, age, habits of industry and sobriety, personal characteristics and qualities, mental and physical capacity to render service, and the probable length of his life.75 Where the jury have been told to consider the age of the deceased, his losses and earnings, if any, his expectancy, pros-pective activity, expense of living and surrounding circumstances, and base their finding on the reasonable probability of his earnings based on the evidence, it is unnecessary to direct them to consider the possibility of the deceased becoming poor and his children being com

Canal Co., 40 Fed. Rep. 195; s. c. 6 L. R. A. 75; 41 Am. & Eng. R. Cas. 473.

"Louisville &c. R. Co. v. Morgan, 114 Ala. 449; s. c. 22 South. Rep. 20; Locher v. Kluga, 97 Ill. App. 518; Chicago &c. R. Co. v. Kelly, 182 Ill. 267; s. c. 54 N. E. Rep. 979; aff'g s. c. 80 Ill. App. 675; Diebold v. Sharp, 19 Ind. App. 474; s. c. 49 N. E. Rep. 837; McKay v. New England Dredging Co., 92 Me. 454; s. c. 43 Atl. Rep. 29; Baltimore &c. R. Co. v. State, 60 Md. 449; Vicksburg v. McLain, 67 Miss. 4; s. c. 6 South. Rep. 774; Missouri &c. R. Co. v. Baier, 37 Neb. 235; s. c. 55 N. W. Rep. 913; Countryman v. Fonda &c. R. Co.. 166 N. Y. 201; s. c. 59 N. E. Rep. 822; rev'g s. c. 54 N. Y. Supp. 1098: Johnson v. Long Island R. Co., 80 Hun (N. Y.) 306; s. c. 62 N. Y. St. Rep. 46; 30 N. Y. Supp. 318; Davis v. Guarnieri, 45 Ohio St. 470; s. c. 13 West. Rep. 438; 15 N. E. Rep. 350; Galveston &c. R. Co. V. Kutac, 72 Tex. 643; s. c. 11 S. W. tep. 127; Pool v. Southern Pac. R. Co., 7 Utah 303; s. c. 26 Pac. Rep. 654; Collins v. Davidson, 19 Fed Rep. 83. An action under Kan. Civ. Code, 8 422, providing for the recovery of damages for wrongfully causing a death, is for pecuniary loss to those entitled to the recovery, and, when brought in behalf of the next of kin to whose support the deceased was under no legal obligation to contribute, it can be maintained for substantial damages only by proof

that he was in the habit of contributing to their support or education, and might be reasonably expected to continue such habit, or by proof of declarations, acts, conduct, or relevant circumstances reasonably tending to show an intention on his part to make such contributions of support or education; and hence where a case lacks such proof a verdict for $5,000 damages for the death cannot be sustained: Atchison &c. R. Co. v. Ryan, 62 Kan. 682; s. c. 64 Pac. Rep. 603. The right of a minor child to recover damages for the death of his father should not be limited to its minority: Tyler &c. R. Co. v. Rasberry, 13 Tex. Civ. App. 185; s. c. 34 S. W. Rep. 794; 3 Am. & Eng. R. Cas. (N. S.) 376; Galveston &c. R. Co. v. Puente, 30 Tex. Civ. App. 246; s. c. 70 S. W. Rep. 362.

75 Atlanta &c. R. Co. v. Ayres, 53 Ga. 12; David v. South-Western R. Co., 41 Ga. 223; Macon &c. R. Co. v. Johnson, 38 Ga. 409; Chicago V. Major, 18 Ill. 349; Mayhew v. Burns, 103 Ind. 328; s. c. 1 West. Rep. 577; Pittsburgh &c. R. Co. v. Parish, 28 Ind. App. 189; s. c. 62 N. E. Rep. 514; Lowe v. Chicago &c. R. Co., 89 Iowa 420; s. c. 56 N. W. Rep. 519; Chesapeake &c. R. Co. v. Dupree, 23 Ky. L. Rep. 2349; s. c. 67 S. W. Rep. 15; Missouri Pac. R. Co. v. Moffatt, 60 Kan. 113; s. c. 55 Pac. Rep. 837; Oaks v. Maine &c. R. Co., 95 Me. 103; s. c. 49 Atl. Rep. 418; Baltimore &c. R. Co. v. Kelly, 24 Md.

76

pelled to support him in his old age. So, it is not within the province of the jury, in determining the measure of damages, to speculate on how long the decedent might have been sick, or how often out of employment, or how many times injured in accidents in his line of employment, had he lived, and deduct the amount from his gross earnings, though such matters, together with his health, habits of life, and dangers attending his occupation, are proper subjects for consideration.77

$7092. What are Probable Earnings.-Where the recovery is based upon the probable earnings of the deceased, the earnings intended are the probable earnings in the profession or vocation followed by the deceased, and which he was permanently pursuing at the time of his death.78 The jury is not bound by the amount which the decedent actually earned during his life, but may within reasonable bounds consider whether his earning capacity would probably have increased or diminished.79 But evidence as to a prospective advance in his salary, based on the prosperity of his employer's business, has been held inadmissible where such prosperity was dependent upon a problematic condition of peace or war in one of the South American Republics.80

§7093. Nursing, Medical Attendance, Funeral Expenses, etc.In an action by a parent for the death of a child, damages have sometimes been allowed for nursing and medical attendance before death,

V.

V.

271; Baltimore &c. R. Co. Trainor, 33 Md. 542; Benton North Carolina R. Co., 122 N. C. 1007; s. c. 30 S. E. Rep. 333; Costello v. Landwehr, 28 Wis. 532; Baltimore &c. R. Co. v. Mackey, 157 U. S. 72; s. c. 39 L. ed. 624; 15 Sup. Ct. Rep. 491.

7 Sternfels v. Metropolitan St. R. Co., 174 N. Y. 512; s. c. 66 N. E. Rep. 1117; aff'g s. c. 73 App. Div. (N. Y.) 494; 77 N. Y. Supp. 309.

"Watson v. Seaboard &c. R. Co., 133 N. C. 188; s. c. 45 S. E. Rep. 555.

78 Atlanta &c. R. Co. v. Newton, 85 Ga. 517; s. c. 11 S. E. Rep. 776. Evidence in an action against a railroad company for the death of an employé, that he had been an apprentice at the plasterers' and bricklayers' trade for two or three years before he went to work for the rail

road company, and that he could do a good day's work at the business, and evidence as to wages paid to plasterers at the time of his death, is admissible on the question of damages: Grimmelman V. Union Pac. R. Co., 101 Iowa 74; s. c. 70 N. W. Rep. 90; 8 Am. & Eng. R. Cas. (N. S.) 321.

7 Beecher v. Long Island R. Co., 53 App. Div. (N. Y.) 324; s. c. 65 N. Y. Supp. 642. Under the Maine statute the earning capacity of the deceased, including not only physical ability to labor, but the probabilities of obtaining profitable employment, is an element to be considered in estimating damages: Oakes v. Maine Cent, R. Co., 95 Me. 103; s. c. 49 Atl. Rep. 418.

80 Fajardo v. New York Cent. &c. R. Co., 84 App. Div. (N. Y.) 354; s. c. 82 N. Y. Supp. 912.

83

and for the funeral expenses.1 In England,82 Canada, and some of the States of the United States,84 expenses for the funeral and mourning are not allowed in an action for death; but the general rule in this country seems to be that the plaintiff may recover compensation for medical aid and funeral expenses necessitated by the injury, if he is a person upon whom the law casts an obligation to furnish these to the deceased. For these an action could be maintained before the enactment of the statute. Although at common law no action for an injury to the person survived if the injury resulted in death, yet compensation for expenses incurred for medical services, burial, etc., by a person who was under legal obligation to furnish them, could be recovered of the person by whose wrongful act the injury was inflicted. Nothing, however, could be recovered for the loss of life. But if there is no such obligation, the law will regard the payment of these expenses as voluntarily assumed,-as in the case where a father, suing for the death of a son over twenty-one years of age, and living away from home, set up a claim for such expenses. These claims, if re

Augusta Factory v. Davis, 87 Ga. 648; Jackson v. Pittsburg &c. R. Co., 140 Ind. 241; Owen v. Brockschmidt, 54 Mo. 285; Rains v. St. Louis &c. R. Co., 71 Mo. 164; Emery V. Boston &c. R. Co., 67 N. H. 434; s. c. 36 Atl. Rep. 367; Cleveland &c. R. Co. v. Rowan, 66 Pa. St. 393; Pennsylvania &c. R. Co. v. Bantom, 54 Pa. St. 495.

Boulter v. Webster, 13 Week. Rep. 289; Dalton v. South-Eastern R. Co., 4 C. B. (N. S.) 296; s. c. 4 Jur. (N. S.) 711; 27 L. J. (C. P.) 227; Franklin v. South-Eastern R. Co., 3 Hurl. & N. 211; s. c. 4 Jur. (N. S.) 565.

Filiatrault v. Canadian &c. R. Co., Rap. Jud. Que. 18 C. S. 491.

St. Louis &c. R. Co. v. Sweet, 57 Ark. 287; s. c. 21 S. W. Rep. 587; Wilcox v. Wilmington City R. Co.,

Pen. (Del.) 157; s. c. 44 Atl. Rep. 686; Holland v. Brown, 35 Fed. Rep. 43; Consolidated Traction Co. v. Hone, 60 N. J. L. 444; s. c. 9 Am. & Eng. R. Cas. (N. S.) 249; 38 Atl. Rep. 759; rev'g s. c. 59 N. J. L. 275; 5 Am. & Eng. R. Cas. (N. S.) 679; 35 Atl. Rep. 899; Murray v. Usher, 117 N. Y. 542; s. c. 27 N. Y. St. Rep. 928; 23 N. E. Rep. 564; Trow v. Thomas, 70 Vt. 580; s. c. 41 Atl. Rep. 652.

Bunyea v. Metropolitan R. Co., 8 Mack. (D. C.) 76; Augusta Factory v. Davis, 87 Ga. 648; s. c. 13

87

86

S. E. Rep. 577; Southern R. Co. v. Covenia, 100 Ga. 46; s. c. 10 Am. & Eng. R. Cas. (N. S.) 551; 62 Am. St. Rep. 312; 29 S. E. Rep. 219; 40 L. R. A. 253; Owen v. Brockschmidt, 54 Mo. 285; Corliss v. Worcester &c. R. Co., 63 N. H. 404; Consolidated Traction Co. v. Hone, 59 N. J. L. 275; s. c. 35 Atl. Rep. 899; 5 Am. & Eng. R. Cas. (N. S.) 679; s. c. rev'd, 60 N. J. L. 444; 38 Atl. Rep. 759; Murphy v. New York Cent. &c. R. Co., 88 N. Y. 445; Roeder v. Ormsby, 22 How. Pr. (N. Y.) 270; Pennsylvania &c. R. Co. v. Bantom, 54 Pa. St. 495; Madara v. Pottsville Iron &c. Co., 160 Pa. St. 109; Petrie v. Columbia &c. R. Co., 29 S. C. 303; s. c. 7 S. E. Rep. 515; Gulf &c. R. Co. v. Southwick (Tex. Civ. App.), 30 S. W. Rep. 592 (no off. rep.). A sum paid for medical and surgical attention and funeral expenses of one negligently killed cannot be recov ered from the one who caused his death, unless the estate becomes liable therefor by the claim being probated within two years after letters of administration were issued: St. Louis &c. R. Co. v. Sweet, 63 Ark. 563; s. c. 40 S. W. Rep. 463.

se Eden v. Lexington &c. R. Co., 14 B. Mon. (Ky.) 204. See also, Jackson v. Pittsburg &c. R. Co., 140 Ind. 241; s. c. 39 N. E. Rep. 663.

87 Dalton v. South-Eastern R. Co., 4 C. B. (N. S.) 296.

coverable at all, must be specially pleaded,ss and their reasonableness established.89

§ 7094. Skill in the Management of Wealth as an Element of Damages. The earning power of a healthy man living on his income, for which damages on account of his death may be given to his administrator, may include his skill in the management of wealth, or capacity to manage affairs which would be of advantage to an estate.9o

§ 7095. Sufferings of Deceased as an Element of Damages.-It is only in States where the statutes giving a right of action for death also provide for a survival of the action for the injuries, that a recovery for suffering of the deceased is properly authorized.1 In States where the statute creates a new right of action and limits recovery to the pecuniary loss to the beneficiaries, there can be no recovery for pain and suffering of the deceased.2 The New Hampshire statute provides that if the administrator of the deceased is the plaintiff, mental and physical pain suffered by the deceased may be considered as an element of damages. In that State the recovery may include a sum assessed on account of distress or anxiety of mind experienced by the deceased in view of death.**

93

§ 7096. Expense of Finding Body.-Under the Louisiana statute, the surviving parents of a daughter who was drowned by the negligence of a steamboat company, were held entitled to recover the expenses incurred in finding the body, loss of services, and also the

88 Gay v. Winter, 34 Cal. 153.

Sieber v. Great Northern R. Co., 76 Minn. 269; s. c. 79 N. W. Rep. 95; International &c. R. Co. v. Boykin, 32 Tex. Civ. App. 72; s. c. 74 S. W. Rep. 93.

90 Skottowe v. Oregon &c. R. Co., 22 Or. 430; s. c. 16 L. R. A. 593; 12 Rail. & Corp. L. J. 112; 30 Pac. Rep. 222.

1 See ante, § 6987.

2 See ante, § 6986; Florida Cent. &c. R. Co. v. Foxworth, 41 Fla. 1; s. c. 25 South. Rep. 338; Chicago &c. R. Co. v. O'Connor, 119 Ill. 586; Holton v. Daly, 106 Ill. 131; Dwyer v. Chicago &c. R. Co., 84 Iowa 479; s. c. 51 N. W. Rep. 244; Louisville &c. R. Co. v. Sander, 19 Ky. L. Rep. 1941; s. c. 44 S. W. Rep. 644 (no off. rep.); Oakes v. Maine &c. R. Co., 95 Me. 103; s. c. 49 Atl. Rep. 418; Galveston &c. R. Co. v. Matula, 79 Tex. 577: s. c. 15 S. W. Rep. 573; Southern Cotton Press &c. Co.

v. Bradley, 52 Tex. 587; McDonald v. The King, 7 Can. Exch. 216.

93 N. H. Pub. Stat., ch. 191, §§ 8, 12. See Clark v. Manchester, 62 N. H. 577. But evidence of such suffering must be introduced. Thus, where, in an action for an injury by a locomotive explosion, causing the death of the locomotive-engineer, it merely appeared that the explosion had occurred, and that decedent's body was found on the snow about two hundred feet away, with life extinct and showing no signs of mangling, with blood escaping from the mouth, nose and ears, it was held error to submit to the jury the issue of physical suffering as an element of damages: Hastings Lumber Co. v. Garland, 115 Fed. Rep. 15; s. c. 52 C. C. A. 609.

"Corliss v. Worcester &c. R. Co.,. 63 N. H. 404; s. c. 1 N. Eng. Rep. 163.