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erally careful habits, it is competent for plaintiff to show how much deceased paid for his living expenses. In the case of the death of a minor who had left home some years before his death, it has been held proper to show that the deceased would have been able to earn substantial wages, and that he had manifested an intention to give and as a matter of reasonable certainty would have given the same or some material portion thereof to his parents."

§ 7130. Evidence of Earnings under Punitive Statutes.-Under statutes like that of Alabama, providing that the personal representative of one killed by wrongful act may recover such damages as the jury may assess, evidence of the age, physical and mental condition, earning capacity and occupation of the deceased, and the amount contributed by him to the support of dependent next of kin, is irrelevant, as statutes of this character permit the recovery of punitive damages instead of compensatory damages."

§ 7131. Professional Income Not to be Proved by Experts.-The amount of the income of a professional man is to be ascertained by the testimony of witnesses who knew his character and professional reputation, as well as the extent of his practice, in the place where he lived and its neighborhood, and not by the testimony of experts.1o

§7132. Health of Deceased.-Where the measure of damages for the mere loss of life is the value of his life to the decedent himself, in the sense of his earning capacity under all the circumstances within the maximum fixed by the statute, evidence that the deceased was in good health and in the prime of life is properly admissible as showing the value of the life of the deceased to himself;11 and this class of evidence is generally admissible as bearing on the pecuniary` value of the life of the decedent to the beneficiaries.12

§ 7133. Photograph of Deceased. Where the husband is to be compensated for the death of his wife on the basis of the monetary value of her services to her husband and children, it is the view of

44 Ill. App. 466; Opsahl v. Judd, 30 Minn. 126; s. c. 14 N. E. Rep. 575.

7 Burns v. Asheboro &c. R. Co., 125 N. C. 304; s. c. 34 S. E. Rep. 495. $ Dean v. Oregon &c. R. Co., Wash.; s. c. 80 Pac. Rep. 842.

Louisville &c. R. Co. v. Tegnor, 125 Ala. 593; s. c. 28 South. Rep. 510.

11 Broughel v. Southern &c. Tel. Co., 73 Conn. 614; s. c. 48 Atl. Rep. 751; Wheelan v. Chicago &c. R. Co., 85 Iowa 167; s. c. 52 N. W. Rep. 118; 49 Am. & Eng. R. Cas. 693.

12 Coffeyville Min. &c. Co. v. Carter, 65 Kan. 565; s. c. 70 Pac. Rep. 635; Wilcox v. Wilmington City R. Co. 2 Pen. (Del.) 157; s. c. 44 Atl.

10 State v. Cecil Co., 54 Md. 426 Rep. 686. (dentist).

the Court of Appeals of New York that the introduction in evidence of the photograph of a handsome woman could accomplish no other result than to introduce into the case the personal element for the consideration of the jury and to awaken their sympathies; and the admission of such evidence was held to be just cause for reversal.13

$7134. Condition and Circumstances of Beneficiaries. In jurisdictions where the statute makes the recovery turn upon the dependency of the beneficiaries on the deceased for support, the circumstances, age, health and means of support of the beneficiaries may be proved for the purpose of showing whether such beneficiaries would in all likelihood have received financial aid from the deceased. So, where the beneficiary is a hopelessly crippled child, this fact may be proved to show the need of a father's care, protection and support during the life of such child, and to establish the extent of the loss to the child;15 and where the suit is for the death of a boy seven or eight years of age, it has been held that, if the family was poor, the fact that the boy would probably have commenced early to assist in supporting the family may be taken into consideration.16 Furthermore,

"Smith v. Lehigh Valley R. Co., 177 N. Y. 379; s. c. 69 N. E. Rep. 729; rev'g s. c. 86 App. Div. (N. Y.) 628; 83 N. Y. Supp. 1117. For proof of identity of deceased, see Kansas &c. R. Co. v. Miller, 2 Colo. 442. And see Luke v. Calhoun Co., 52 Ala. 115, where a photograph was offered in evidence for this purpose.

"Little Rock &c. R. Co. v. Leverett. 48 Ark. 333; s. c. 3 S. W. Rep. 50; Cook v. Clay Street Hill R. Co., 60 Cal. 604; Southern R. Co. v. Lafferty, 57 Fed. Rep. 536; s. c. 15 U. S. App. 193; 6 C. C. A. 474; Augusta R. Co. v. Glover, 92 Ga. 132; s. c. 18 S. E. Rep. 406; Union &c. R. Co. v. Dunden, 37 Kan. 1; Staal v. Grand Rapids &c. R. Co., 57 Mich. 239; Cooper v. Lake Shore &c. R. Co., 66 Mich. 26; s. c. 10 West. Rep. 184; 33 N. W. Rep. 306; Opsahl v. Judd, 30 Minn. 126; Railroad Co. v. Crudup, 63 Miss. 291; Hael v. Wabash R. Co., 119 Mo. 325; s. c. 24 S. W. Rep. 737; Bowles v. Rome &c. R. Co., 46 Hun (N. Y.) 324; s. c. 12 N. Y. St. Rep. 457; Lustig v. New York &c. R. Co., 65 Hun (N. Y.) 547; s. c. 20 N. Y. Supp. 477; Fowler v. Buffalo Furnace Co., 41 App. Div. (N. Y.) 84; s. c. 58 N. Y. Supp. 223; Lockwood v. New York &c. R. Co., 98 N. Y. 523; Pressman v. Mooney, 5 App. Div. (N. Y.) 121; s. c. 39 N.

Y. Supp. 44; Cincinnati St. R. Co. v. Altemeier, 60 Ohio St. 10; s. c. 41 Ohio L. J. 245; 6 Am. Neg. Rep. 179; 53 N. E. Rep. 300; International &c. R. Co. v. Kindred, 57 Tex. 419; Houston &c. R. Co. v. White, 23 Tex. Civ. App. 280; s. c. 54 S. W. Rep. 204; Railroad Co. v. Davis, 22 Tex. Civ. App. 335; s. c. 54 S. W. Rep. 909; Railroad Co. v. Knight (Tex. Civ. App.), 52 S. W. Rep. 640; St. Louis &c. R. Co. v. Bowles, 32 Tex. Civ. App. 118; s. c. 72 S. W. Rep. 451; Ewen v. Railroad Co., 38 Wis. 613; Wiltse v. Tilden, 77 Wis. 152; s. c. 46 N. W. Rep. 234; Thoresen v. La Crosse City R. Co., 94 Wis. 129; s. c. 68 N. W. Rep. 548; Barley v. Chicago &c. R. Co., 4 Biss. (U. S.) 430. In an action under V. Stat. 1894, §§ 2451, 2452, authorizing an action for damages by the next of kin, for death from wrongful act, it is proper, on the measure of damages, to show the property possessed by intestate and the next of kin, as indicating the extent of the loss: Lazelle v. Newfane, 70 Vt. 440; s. c. 41 Atl. Rep. 511.

15 Hunt v. Conner, 26 Ind. App. 41; s. c. 59 N. E. Rep. 50 (invalid child).

16 Barley v. Chicago &c. R. Co., 4 Biss. (U. S.) 430.

evidence showing the needy circumstances and dependency of parents is essential to the allowance of damages based on a reasonable expectation of pecuniary benefit to the parents after the deceased would have reached his majority." But evidence of this character is admissible solely for the purposes indicated, and its use should be limited. to these particular purposes; and its tendency to arouse sympathy and enhance the amount of the recovery should be guarded against by proper instructions.18 In jurisdictions where the question is, How much would the deceased in all probability have added to his estate had he lived? evidence of this character is clearly irrelevant, as its tendency is to arouse sympathy and cloud the issue;19 and so, in such a case, it may not be shown that a beneficiary is blind, palsied, deaf, or crippled,20 or that a father suing for the death of a son had lost an arm.21 In this latter class of cases, though it is not competent to show the present pecuniary circumstances of the widow, family or next of kin, or what they have been since the death of the deceased, the court may allow the plaintiff to show that the wife, children or next of kin were dependent upon the deceased for support before and at the time of his death.22

§ 7135. Number, Age and Sex of Children.-In conformity with the doctrine of the foregoing section, evidence showing the number, age and sex of children dependent on the deceased for support, which support is to be continued by the widow, is admissible to show the extent of the obligation resting on the deceased,23 except in States

17 Potter v. Chicago &c. R. Co., 21 Wis. 373; s. c. 94 Am. Dec. 548; Johnson v. Railroad Co., 64 Wis. 425; s. c. 25 N. W. Rep. 223 (father rheumatic and mother compelled to work out).

18 Citizens' R. Co. v. Washington, 24 Tex. Civ. App. 422; s. c. 58 S. W. Rep. 1042.

19 Central R. Co. v. Moore, 61 Ga. 151; Beard v. Skeldon, 13 Ill. App. 54; Chicago &c. R. Co. v. Henry, 7 Ill. App. 322; Chicago &c. R. Co. v. Howard, 6 Ill. App. 569; Chicago &c. R. Co. v. Moranda, 93 Ill. 302; Chicago &c. R. Co. v. Woolridge, 174 Ill. 330; s. c. 51 N. E. Rep. 701; Benton v. Chicago &c. R. Co., 55 Iowa 496; English v. Southern Pac. Co.. 13 Utah 407; s. c. 35 L. R. A. 155; 4 Am. & Eng. R. Cas. (N. S.) 63: 45 Pac. Rep. 47.

20 Illinois &c. R. Co. v. Baches, 55 Ill. 379; Pittsburgh &c. R. Co. v.

Kinnare, 105 Ill. App. 566; s. c. aff'd, 203 Ill. 388; 67 N. E. Rep. 826.

21 Illinois Cent. R. Co. v. Bandy, 88 Ill. App. 629.

Pennsylvania Co. v. Keane, 143 Ill. 172; s. c. 32 N. E. Rep. 260; Swift v. Foster, 163 Ill. 50; s. c. 12 Nat. Corp. Rep. 396; 44 N. E. Rep. 837. See also, Louisville &c. R. Co. v. Jones, 130 Ala. 456; s. c. 30 South. Rep. 586.

28 Louisville &c. R. Co. v. Banks, 132 Ala. 471; s. c. 31 South. Rep. 573; Coffeyville Min. &c. Co. v. Carter, 65 Kan. 565; s. c. 70 Pac. Rep. 635; Fisher v. Central Lead Co., 156 Mo. 479; s. c. 56 S. W. Rep. 1107; O'Mellia v. Kansas City &c. R. Co., 115 Mo. 205; s. c. 21 S. W. Rep. 503; Baltimore &c. R. Co. v. Sherman, 30 Gratt. (Va.) 602; Mulcairns v. Janesville, 67 Wis. 24. A statute of Illinois provides for the safety of those employed in coal mines, and

where the damages recoverable are pecuniary only, in which case the evidence would be clearly irrelevant and should be excluded as tending only to awaken the sympathy of the jurors and warp their judgment; and this particularly in States of which Kentucky is the type, where the measure of damages for the wrongful death is the loss. to the estate of the deceased by the destruction of his earning power.25

$7136. Moral Character of Beneficiary.-Under the rule which denies the right to increase or diminish the damages on account of a change in the circumstances of the widow, child, or next of kin of an injured person after his death, evidence as to the habits and moral character of the widow of the deceased is properly excluded.26

$7137. Evidence to Prove Marriage of Parties.-In cases where it is held necessary to show the marriage of the parties to the action or for whom the action is brought,27 it may be proved by showing by the parties themselves that they were married and had lived together for a number of years,28 or it may be shown by general reputation.20

§7138. Wealth and Standing of Defendant.-The wealth of the defendant cannot be shown,30 unless it is sought to recover exemplary damages,31

gives to the widow, lineal heirs, or adopted children, or to other persons dependent for support on one killed by reason of a failure to comply with the provisions of the act, a right of action, etc. It was held in an action brought by a widow, that the statute contemplates but one action, and that therefore evidence of the existence of children is admissible: Beard v. Skeldon, 13 III. App. 54. Under Mill. & V. Tenn. Code, § 3130, providing that a right of action, which one dying from the wrongful act of another would have had against the wrong-doer if death had not ensued, shall pass to his widow; and section 3132, giving the widow the right to institute an action in her own name; and section 3134, declaring that the party suing can recover for the mental and physical suffering resulting to deceased, and also the damages resulting to the parties for whose use and benefit the right of action survives-where plaintiff sued for the killing of her husband by defendant railroad company, and her children were not mentioned in the declaration as beneficiaries, it was not er

ror to permit her to prove how many children she had by deceased, their ages, and that they were all girls, since the recovery inures to the benfit of the widow and children: Illinois Cent. R. Co. v. Davis, 104 Tenn. 442; s. c. 58 S. W. Rep. 296.

24 Beems v. Chicago &c. R. Co., 58 Iowa 150; St. Louis &c. R. Co. v. Rawley, 90 Ill. App. 653; Bradley v. Ohio River &c. R. Co., 122 N. C. 972; s. c. 30 S. E. Rep. 8.

25 Chesapeake &c. R. Co. v. Reeves, 11 Ky. L. Rep. 14; s. c. 11 S. W. Rep. 464; Louisville &c. R. Co. v. Taafe, 106 Ky. 535; s. c. 50 S. W. Rep. 850; Southern R. Co. v. Evans, 23 Ky. L. Rep. 568; s. c. 63 S. W. Rep. 445.

26 Consolidated Stone Co. v. Morgan, 160 Ind. 241; s. c. 66 N. E. Rep. 696.

27 See Toledo &c. R. Co. v. Brooks, 81 Ill. 245; Conant v. Griffin, 48 Ill. 410; Provost v. Jackson, 13 Lower Can. Jur. 170.

White v. Maxcy, 64 Mo. 552. 29 Conant v. Griffin, 48 Ill. 410. 30 Conant v. Griffin, 48 III. 410; Morgan v. Durfee, 69 Mo. 469. 31 Morgan v. Durfee, 69 Mo. 469.

§ 7139. Rules of Evidence where Action is Criminal in Form.The same rules of evidence and principles of law apply in actions under the statutes of New Hampshire and Maine which are criminal in form as are applied in civil cases.32 In Massachusetts, it is held that evidence of death being caused by giving poison by mistake is sufficient to support an action under a statutes which provides that actions for damage to the person shall survive.34

36

§ 7140. Presumptions and Burden of Proof in Actions for Death -Habits of Deceased. The law presumes a pecuniary loss from the death of a child35 or a wife. There is a further presumption that a person found dead, and killed by the alleged negligence of another, has exercised due care himself;37 and the jury may properly take into consideration the instinct prompting the preservation of life and the avoidance of danger.38 Where there are no witnesses to the accident, evidence of the habitual care of the deceased is often admitted on the question of his exercise of due care at the time of the accident.3 this

32 State v. Manchester &c. R. Co., 52 N. H. 528; State v. Grand Trunk R. Co., 58 Me. 176; State v. Consolidated R. Co., 67 Me. 479.

39

In

another has exercised due care himself, and to substitute therefor a charge that an "inference" arises from the instinct of self-preserva

33 Mass. Rev. Laws 1902, ch. 171, tion that the person killed has ex

§ 2.

34 Norton v. Sewall, 106 Mass. 143. It is not error in a civil action for damages for wrongful death to exclude from the jury a verdict of not guilty, rendered in a criminal prosecution for the same offense: March v. Walker, 48 Tex. 372.

35 Bradley v. Sattler, 156 Ill. 603; s. c. 41 N. E. Rep. 171; aff'g s. c. 54 Ill. App. 504; Chicago &c. R. Co. v. Huston, 196 Ill. 480; s. c. 63 N. E. Rep. 1028; McKechney v. Redmond, 94 Ill. App. 470; Robel v. Chicago &c. R. Co., 35 Minn. 84; Atrops v. Costello, 8 Wash. 149; s. c. 35 Pac. Rep. 620.

36 Delaware &c. R. Co. v. Jones, 128 Pa. St. 308; s. c. 47 Phila. Leg. Int. 396; 24 W. N. C. (Pa.) 562; 18 Atl. Rep. 330.

37 Cogdell v. Wilmington &c. R. Co., 132 N. C. 852; s. c. 44 S. E. Rep. 618.

38 Chicago &c. R. Co. v. Huston, 95 Ill. App. 350; s. c. aff'd, 196 Ill. 480; 63 N. E. Rep. 1028. In an action for negligent death of a servant, it was error to refuse a requested charge that the law "presumes" that a person found dead and killed by alleged negligence of

ercised due care himself; the words "presumption" and "inference" not having the same significance: Cogdell v. Wilmington &c. R. Co., 132 N. C. 852; s. c. 44 S. E. Rep. 618; rev'g s. c. 130 N. C. 313; 41 S. E. Rep. 541. Although, in an action for the death of a traveller, in a collision with a railroad train at a crossing, when all that is known is the fact that he was killed, the natural disposition of men to avoid injuries under such circumstances is evidence tending to show that he was not negligent, yet, when the direct evidence shows what he did or omitted to do for his protection, the evidence derived from such natural disposition cannot be used to prove that he was not negligent, but only furnishes a test of the reasonableness of his known conduct: Waldron v. Boston &c. R. Co., 71 N. H. 362; s. c. 52 Atl. Rep. 443.

"Chicago &c. R. Co. v. Downey, 85 Ill. App. 175; Atchison &c. R. Co. v. Alsdurf, 68 Ill. App. 149; Chicago &c. R. Co. v. Gunderson, 174 Ill. 495; s. c. 51 N. E. Rep. 708; aff'g s. c. 74 Ill. App. 356; Chicago &c. R. Co. v. Halsey, 31 Ill. App. 601; Illinois &c. R. Co. v. Pummill, 58 Ill.

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