penses incurred by the father, in consequence of the injury sustained by the child. With respect to the first ground, I apprehend that the gist of the action depends upon the capacity of the child to perform acts of service. Here it is manifest that the child was incapable of performing any service. The authorities upon this point are all one way. In the cases which have been cited, the child being incapable of performing acts of service, and living with the parent, would naturally be called upon to perform some acts of service; and it was, therefore, held, that the service might be presumed, and that evidence of it need not be given. In Weedon v. Timbrel, 5 T. R. 357, both Lord Kenyon and Ashhurst, J., say, that the loss of service is the gist of such an action as the present, and that the plaintiff must give some proof of acts of service, in order to support the allegation in the declaration, although very slight evidence is sufficient; and in a case of Satterthwaite v. Duest it was held that an action for debauching a daughter could not be maintained by a father, unless she was his servant, and that the action could not be maintained on the ground of expense having been incurred in providing for her during her confinement. In this case, too, it was proved that the father did not necessarily incur any expense; if he had done so I am not prepared to say that he could not have recovered upon a declaration describing, as the cause of action, the obligation of the father to incur that expense. 70. CUMMING v. BROOKLYN CITY RAILWAY COMPANY 109 N. Y. 95, 16 N. E. 65 APPEAL from general term, Supreme Court, Second department. Action by Isabella Cumming to recover for loss of services resulting from injuries inflicted on her daughter Bessie I. Cumming, by the Brooklyn City Railroad Company, defendant. Judgment for plaintiff, affirmed by the general term, and defendant appeals. Morris & Pearsall, for appellant. Carpenter & Roderick, for respondent. ANDREWS, J. It seems to be the doctrine of the law of England that the right of a parent to maintain an action for an injury to his minor child, from the tortious act of a third person, is founded exclusively upon the loss of service, and that the parent has no remedy even for expenses incurred, unless the child is old enough to be capable of rendering some act of service, and the relation of master and servant, express or implied, exists between them. Grinnell v. Wells, 7 Man. & G. 1041; 2 Add. Torts, $902. But when the action is maintainable on the ground of loss of service, then, both by the law of England and of this country, the parent may claim indemnity, not only for the actual loss of service to the time of the trial, but also for any loss of service during the child's minority, which, in the judgment of the jury, and according to the evidence, will be sustained in the future, and for expenses necessarily incurred by the parent in the cure and care of the child in consequence of the injury. Cowden v. Wright, 24 Wend. 429; Drew v. Railroad, 26 N. Y. 49; Dixon v. Bell, 1 Starkie, 287; Schouler, Dom. Rel. 351. The English rule which denies to the parent any remedy for medical or other expenses incurred in consequence of the injury to the child, except as incident to the loss of service, ignores the parental relation and obligation as an inde pendent ground of recovery, although it may be manifest that the parent had sustained a pecuniary loss as the proximate result of the wrong. The Court of Massachusetts, in the case of Dennis v. Clark, 2 Cush. 347, held a more liberal, and, as it seems to us, a more reasonable and equitable doctrine, and decided that when an infant, residing with his father, receives an injury such as would give the child a right of action, the father who is put to necessary expense in the care and cure of the child, may maintain an action for indemnity, although the child was, by reason of his tender age, incapable of rendering any service. This doctrine casts upon the wrongdoer responsibility for a pecuniary loss flowing from his wrongful act, actually sustained by the parent in the discharge of his parental obligation to care for and maintain his infant children. But there is another phase of the question presented in the present case. The mother, the father being dead, brings her action, founded upon loss of service for an injury to her minor child, and is permitted to recover not only prospective damages for loss of service during the fifteen years before the child will reach her majority, but also for surgical expenses which have not been in fact incurred, and the incurring of which is not presently necessary, but which, in the opinion of experts examined on the trial, it will become necessary to incur, in consequence of the injury, at some time during the child's minority. The trial judge, with a view to the ascertainment of this item of damages, permitted a surgeon, against the objection of the defendant, to testify that the expense of an operation, which, in his judgment, would become necessary at some remote period during the child's minority, would be $300. In other words, the jury were permitted to include, as a part of the damages in the action, the value of contingent and prospective surgical services. The right of the parent, in an action for loss of service of a child disabled by a tortious injury, to recover for prospective loss of service during the child's minority, is well settled. These damages are, however, of necessity to a great extent speculative or conjectural. There are many contingencies which may deprive the parent of the services of a child, and even make the child a pecuniary burden to the parent, although the particular injury had not happened. The child may die from disease or other accident, or the parent may die. The prospective damages for loss of service, recoverable in such a case as this, may never in fact be sustained. But as only one action can be maintained against a wrongdoer for a single wrong, the law, from necessity, permits consequences not yet fully ascertained, but which are reasonably certain to happen, to be anticipated, and a jury is allowed to estimate the damages for future loss of service in the light of experience and of such evidence as can be given. The damages allowed in this case for prospective surgical expenses have still another element of uncertainty. If recoverable by the parent, it must be upon the ground of the parent's obligation to maintain the child. But not only may the parent die or the child die, thereby rendering the surgical expenses unnecessary, but the parent may become wholly unable to pay for the services, if required, or the child may be treated in a hospital, or at public expense, as was in fact the case in this instance, when the child's leg was amputated. There is adequate reason for permitting the parent to recover medical or other expenses actually incurred, consequent upon an injury to the child from the wrongful act of a third person. In case of an injury to a minor child, whose parents are living, there is a double right of action: an action by the child, and an action by the parent. In the child's action, plainly, there can be no recovery for expenses actually incurred by the parent, and so far a double recovery is prevented. But it is not so plain that the child may not recover, as part of his damages, all the proximate pecuniary consequences of his disability, including medical and other expenses, as under the evidence the jury shall find it will be necessary in the future to incur. The denial of this right would, in many cases, deprive the child of the means of necessary relief. It cannot, I suppose, be doubted that, the parents being dead, all the future consequences of the injury and necessary expenses flowing from the disability would be a proper element to be considered by the jury in an action brought by the child, nor is there much doubt that these considerations enter into every verdict rendered in an action brought by a minor for his personal injury. There is perhaps a logical difficulty in denying the right of the parent to recover the damages now in question, but the same difficulty attends a denial of the child's right. It appears by the record that the child has brought an action, and has recovered her damages. In the absence of controlling authority, we are of opinion that in an action by a parent, founded on loss of service of the child, only expenses actually incurred by the parent, for medicine or medical attendance, or which are immediately necessary to be incurred, are recoverable as incident to the main cause of action, and that future, prospective, contingent expenses of this kind are recoverable only in an action by the child. The parent, in an indirect way, is benefited by a recovery by the child, and this rule will be most likely to accomplish justice and prevent a double recovery in such cases. The obligation of parents to maintain and provide for their children has its most effectual sanction in the natural affections. The law, at best, can but imperfectly enforce it. It does not undertake to do so directly until children have become, or are likely to become, a public charge. The law of necessaries is so limited and guarded that the wants of children can only be supplied under this rule in exceptional cases. The legal obligation of maintenance and support resting on the mother is especially imperfect. In all cases it necessarily can be enforced only in cases of the pecuniary ability of the parent, and in case of the mother the child's means are first chargeable with his support. Furman v. Van Sise, 56 N. Y. 435. A recovery in the child's action for a personal injury, for prospective medical services, where the fund recovered is usually preserved through a guardian, or in other ways, will be most likely to secure such services when needed. Whether, in any view, the attempt to fix a definite sum for contingent expenses which may never be incurred, was not pushing the evidence further than is permissible, need not be considered. These views lead to a reversal of the judgment. All concur. 71. MCGARR v. NATIONAL & PROVIDENCE WORSTED MILLS SUPREME COURT OF RHODE ISLAND. 1902 24 R. I. 447; 53 Atl. 320 ACTION by Annie McGarr against the National & Providence Worsted Mills. After verdict for plaintiff, defendant petitions for a new trial. Granted. Argued before STINESS, C. J., and TILLINGHAST and ROGERS, JJ. J. W. Hogan and P. S. Knauer, for plaintiff. Walter B. Vincent and Huddy & Easton, for defendant. TILLINGHAST, J. This is an action of trespass on the case for negligence, and is brought to recover damages for the loss of service of the plaintiff's minor daughter, Sarah McGarr, and also to recover for the expenses incurred by the plaintiff for medicines, medical attendance, and nursing, occasioned by reason of personal injuries sustained by said Sarah while in the employ of the defendant corporation. Said Sarah McGarr, by her father and next friend, Owen McGarr, had previously brought suit against the defendant to recover damages for personal injuries growing out of the accident in question (see 22 R. I. 347, 47 Atl. 1092), and had obtained a substantial verdict therein; and thereafterwards the mother, Annie McGarr, brought this action to recover for the consequential damages suffered by herself on account of said injuries to her daughter, and upon trial thereof a verdict was rendered in her favor for the sum of $9,500. The case is now before us upon the defendant's petition for a new trial upon the grounds (1) that the verdict is against the law and the evidence; (2) that the presiding justice erred in admitting certain evidence against the objection of the defendant, and also erred in refusing to admit certain evidence offered by the defendant; (3) that the presiding justice also erred in his instructions to the jury; and (4) that the damages awarded by the jury were excessive and unjust. At the trial of the case all of the questions involved, including the ques tion of the defendant's negligence, were considered as fully as if there had been no prior verdict and judgment in favor of the daughter, Sarah McGarr. The proof shows that she was employed by the defendant as a spinner, and at the time of the accident, January 6, 1899, was engaged in tending a spinning frame in No. 6 mill of the defendant company. The spinning frame was run by an overhead belt some ten feet from, and substantially parallel with, the floor. The claim of the plaintiff is that this belt, by reason of its improper and insufficient lacing, suddenly broke, and that one end of it struck her daughter upon the side of her head, inflicting severe injuries, from which major hysteria developed, together with other physical ailments of a very serious and permanent nature. Owen McGarr, the father of Sarah and the husband of the plaintiff, died on November 5, 1900. Defendant's counsel starts out with the broad contention that the action will not lie, on the ground that the plaintiff, as the mother of said Sarah, is not entitled to maintain it: First, because she was not bound to support her child, Sarah; and, second, because the right of action for loss of service, having become vested in the father during his lifetime, could not become devested and vest in the mother after his death. Having taken this position at the jury trial, the defendant objected to the introduction of any testimony as to damages. And as the trial Court overruled this objection, subject to exception by the defendant, the first question which logically presents itself is whether the action will lie. 1. That at the common law the father is entitled to the benefit of his minor children's labor while they live with him and are supported by him, there can be no doubt. His right to their services, like his right to their custody, rests upon the parental duty of maintenance, and is said to furnish some compensation to him for his own services rendered to the child. Schouler, Dom. Rel. (5th ed.) § 252; Brown v. Smith, 19 R. I. 319, 33 Atl. 466, 30 L. R. A. 680. The mother, on the other hand, not being thus bound for the maintenance of her minor children, has no implied right, at the common law, to their services and earnings. The common-law doctrine as thus briefly stated, however, has been greatly relaxed by modern decisions in this country, if not in England; and the strong tendency of the courts in this country, as well stated by Field, C. J., in Horgan v. Mills, 158 Mass. 402, 33 N. E. 581, 35 Am. St. Rep. 504, "is to give to a widow left with minor children, who keeps the family together and supports herself and them with the aid of their services, very much the same control over them and their earnings during their minority, and to impose on her, to the extent of her ability, much the same civil responsibility for their education and maintenance, as are given to and imposed on a father." The Chief Justice then stated the opinion of the Court in that case to be as follows: "We are of opinion that when a minor child lives with its mother, who is a widow, and the child is supported by the mother, and works for her as one of |