it would seem that the statute would have provided that such beneficiary should recover such compensation for himself alone. It must, however, be conceded that the decisions of some of the Courts upon similar statutes recognize the rights of minor children, at least, to recover for the loss of individual pecuniary benefits which would probably have inured to them by the continuance of the life of their parent. Tilley v. Railroad Co. 24 N. Y. 471, 29 N. Y. 252; Terry v. Jewett, 78 N. Y. 338. Under the statutes of New York, the recovery is for the benefit of the next of kin, and is to be there also apportioned as under the statute of descent and distribution. It is worthy of remark that under such a statute the recovery may go to remote collateral kindred, who have no interest whatever in the life of their relative, except the prospective shares they may receive, as distributees of his estate, upon his dying intestate. Where such is the loss to be recompensed, it is no answer to the plaintiff's demand to say to him that he has not been damaged, because he has received a pecuniary benefit from the death of the deceased. His ground of complaint is not that he has been deprived of receiving anything, but that the amount which has come to him is less than it would have been if the life of the deceased had been prolonged. There would seem to be an important difference between statutes which give the right of action to the next of kin, as such, and the statute of this State which undertakes to confer compensation upon the husband or wife and the children and parents of the deceased only, and which requires that the jury shall determine separately the amount to be recovered by each of the beneficiaries. Where the right of action is given for the benefit of the next of kin, and the sum recovered is to be apportioned as under the statute of descent and distribution, it would seem that the leading purpose is to give compensaton for some loss suffered by them all in common; that is to say, the damage which has accrued to them, as next of kin, by reason of the loss of a prospective increase in the amount of the estate to be distributed. Our statute excludes from its benefits the collateral kindred, and its leading purpose seems to be to compensate only such near relatives of the deceased as may be dependent upon him for support, or other aid of pecuniary value, or such as may have been the recipients of such aid or support. It may be that, in statutes of the one class, special injury to one beneficiary may be considered and compensated, though it is difficult to see why the recovery for such loss should be distributed in a fixed proportion among all; and it may be, also, that under our statute the loss of a prospective increase of inheritance may be an element of damages. But, under the latter, each beneficiary recovers for his own special injury. The damages must be actual, and for loss of a pecuniary nature. Nothing is given by way of solace. Under such a law, we cannot see how it can be maintained that one has been damaged by the death when he has received from the estate of the deceased property exceeding in value all the prospective benefits which would have accrued to him, had the death not ensued. Let us suppose that a wealthy son contributes to his aged parent a fixed sum, say $100, annually, and that, from the wrongful act of another he dies, leaving such parent, by his will, a legacy of $10,000. Can it be reasonably asserted that the parent has suffered any pecuniary loss by the death of the son? But we need not go outside of this case for an illustration. If there was any great disparity in the aid extended by Mrs. Long in her lifetime to each of her children, the evidence does not disclose it. By her will she left her property, amounting to nearly $20,000 in value, to her daughters, and gave her sons nothing. If the sons shared equally in her bounty with her daughters during her life, can it be said that their loss is no greater than that of the daughters? It seems to us absurd to say so. It will not do to say, as some of the Courts have said, that to permit a defendant, in a case of this character, to show that the plaintiff had received a pecuniary benefit resulting from the death of the deceased, would enable a wrongdoer to protect himself against the consequences of his wrong. Except for wilful misconduct or gross negligence, exemplary damages are not allowed by the statute. In other cases, actual damages only are given, and the recovery is free from any element whatever of a penal nature. The argument is a legitimate application of the principle that a wrongdoer cannot take advantage of his own wrong. Its main support rests upon a sentiment, a consideration which should not be resorted to in order to change the provisions of the written law. The statute is intended, in case of mere ordinary negligence, to give compensation for a pecuniary loss; and the question is, what is the amount of this loss, if any? This is a practical question, and it should, in every such case, be tried and determined in a reasonable and practical manner. The English statute known as "Lord Campbell's Act," upon which most, if not all, of the statutes of a like character in this country have been modelled, is, in respect to the beneficiaries, very nearly the same as the statute in this State. The action is for the benefit of "the husband, wife, parent and child" of the deceased, and the jury are to apportion the damages among the beneficiaries. The only substantial difference is that Lord Campbell's Act provides that under the term "parents" shall be included "grandparents." In an action brought under that Act, Lord Campbell himself, who presided at the trial, instructed the jury that in assessing the damages they should take into consideration the amount received by the beneficiaries on an accident insurance policy held by the deceased. Hicks v. Railway Co., cited in note to Pym v. Railway Co., 4 Best & S. 403. . . . Statutes giving damages for injuries resulting in death necessarily deal with probabilities; so that where there is a policy on the life of the deceased, payable to the beneficiaries under the statute, the probability is, or may be, that, if the deceased had continued to live, beneficiaries would ultimately have received the insurance money. Hence, they have gained nothing by the premature death, except an acceleration of the payment. Perhaps sound principles would require the jury to take into consideration the use of the money during the period of acceleration. Railway Co. v. Jennings, supra. But, however that may be, the case is very different where the only aid which the beneficiaries have received from the deceased, during his life, has been a part of the income of his property, and where, upon his death, the title to the corpus of such property absolutely vests in them; and we are therefore of the opinion that, in a case involving similar facts, they should be admitted in evidence, to be considered by the jury. We conclude that the Court erred in excluding the will of Mrs. Long, and that for this error the judgment must be reversed. . . 113. HEDRICK v. ILWACO RAILWAY & NAVIGATION COMPANY SUPREME COURT OF WASHINGTON. 1892 4 Wash. 400, 30 Pac. 714 APPEAL from Superior Court, Pacific County; Edward F. Hunter, Judge. Action by Gideon T. Hedrick against the Ilwaco Railway & Navigation Company. Judgment for defendant, and plaintiff appeals. Reversed. Watson, Hume & Watson, for appellant. Fulton Bros., for respondent. ANDERS, C. J. Appellant brought this action against the respondent to recover damages for loss of services, during minority, of his son, Franklin G. Hedrick, aged five years and seven months, whose death it is alleged was caused by the negligence of respondent. The sufficiency of the complaint was not questioned, but the defendant, as a defence to the action, pleaded that the plaintiff, as administrator of the estate of the deceased, had previously recovered a judgment of $2,000 against the defendant for the death of his child, and that the same had been paid. A demurrer was interposed to this defence, which the Court overruled, and, the plaintiff declining to reply, a judgment dismissing the action was entered, from which the plaintiff appealed. The action was brought under section 9 of the Code of 1881 (St. 1873), which reads as follows: "Sec. 9. A father, or, in case of the death or desertion of his family, the mother, may maintain an action as plaintiff for the injury or death of a child, and a guardian for the injury or death of his ward." Section 8 (Code 1881) provides that "the widow, or widow and her children, or child or children, if no widow, of a man killed in a duel, shall have a right of action against the person killing him, and against the seconds, and all aiders and abettors. (St. 1875.) When the death of a person is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or, when the death of a person is caused by an injury received in falling through any opening or defective place in any sidewalk, street, alley, square, or wharf, his heirs or personal representatives may maintain an action for damages against the person whose duty it was, at the time of the injury, to have kept in repair such sidewalk or other place. In every such action the jury may give such damages, pecuniary or exemplary, as, under all circumstances of the case, may to them seem just." That portion of section 8 relating to damages for the death of a person killed in a duel, as well as sections 9 and 717 of the Code of 1881,were originally adopted as parts of the Practice Act of 1873, and were designated, respectively, as sections 8, 9, and 656 of that Act. But the remaining portion of section 8 was not enacted until 1875, and was then designed by the Legislature to follow section 8, as a new and distinct section. See Act Nov. 12, 1875, § 4. Subsequently this "new section was consolidated with the previous section 8, and with it now constitutes section 8 of the Code of 1881, as above set forth. . . . The only question, therefore, to be determined on this appeal, is whether a parent has a right, to recover damages for the death of a child, separate and distinct from that conferred upon the heirs or personal representatives by section 8 of the Code of 1881. It is settled beyond controversy that, at common law, no civil action. could be maintained for damages resulting from the death of a human being. But that defect of the common law has been obviated by statute in the several States, analogous to the English statute commonly known as Lord Campbell's Act (9 & 10 Vict. c. 93), though often varying more or less from its provisions, especially as to the party entitled to maintain the action. The object and purpose of these statutes is to provide a remedy whereby the family or relatives of the deceased, who might naturally have expected maintenance or assistance from the deceased had he lived, may recover compensation from the wrongdoer commensurate with the loss sustained. Usually the right of action, as in Lord Campbell's Act, is given to the executor or administrator, and the sum recovered inures to the benefit of the particular individuals designated by the statute. In this State, as has been seen, under section 8, the heirs or personal representatives may maintain the action; and unless section 9 was, as respondent contends, repealed by the amendatory Act of 1875, a parent may also maintain an action as plaintiff for the injury or death of a child. . . To our minds, these two sections are not necessarily inconsistent, and we do not think it was the intention of the Legislature to repeal either section 8 or 9 of the Act of 1873 by the Act of 1875. . . . A parent, at common law, could maintain an action for damages for loss of services of his minor child from the time of the injury until death, where death. did not immediately follow the injury; and the object of the statute is to create a new and independent right of action for the loss of services subsequent to the decease of the child, which did not exist at common law. And this right is separate and distinct from that of the heirs or personal representatives. Two actions may thus spring from the same wrongful act, because two distinct injuries are thereby inflicted. But the actions are prosecuted in different rights, and the damages are given upon different principles. The damages recovered by a parent for loss of services of a child belong to the parent in his own right, and are not distributable among the heirs, and do not become a part of the estate of the deceased. The measure of damages in such cases is the value of the child's services from the time of the injury until he would have attained the age of majority, taken in connection with his prospects in life, less the cost of his support and maintenance. To this may be added in proper cases the expense of nursing and medical treatment, and in some jurisdictions even funeral expenses. See Mayhew v. Burns, 103 Ind. 328, 2 N. E. Rep. 793; Railroad Co. v. Goodykoontz (Ind. Sup.), 21 N. E. Rep. 472; Rains v. Railway Co., 71 Mo. 164; 2 Thomp. Neg. 1292. Under the California statutes, which are almost identical with ours, the father, and, under certain contingencies, the mother, may maintain an action for the injury or death of a minor child. See Durkee v. Railroad Co., 56 Cal. 388. And in Iowa and Indiana, under statutes but slightly variant from our own, the same rule obtains. See Walters v. Railroad Co., 36 Iowa, 458; Mayhew v. Burns, supra; Railroad Co. v. Goodykoontz, supra; . . . We conclude, therefore, that the judgment in the action brought by the plaintiff, as administrator, is no bar to this action. The judgment of the Court below is reversed, and the cause remanded, with directions to sustain the demurrer. STILES and DUNBAR, JJ., concur. 114. CHALOUX v. INTERNATIONAL PAPER COMPANY SUPREME COURT OF NEW HAMPSHIRE. 1909 TRANSFERRED from Superior Court, Coos County; Pike, Judge. Action by Theodore Chaloux against the International Paper Company. There was a demurrer to the declaration, and the cause was transferred from the Superior Court. Demurrer sustained. The declaration alleged that the plaintiff's minor son on December 17, 1907, during his employment by the defendants, and while in the exercise of due care, was instantly killed by the defendants' negligence. Henry F. Hollis, for plaintiff. Rich & Marble and Sullivan & Daley, for defendants. BINGHAM, J. The question here presented is whether the plaintiff, whose son was instantly killed through the negligence of the defendants, can maintain an action for damages for the loss of the son's services from the time of his death until he would have attained his majority. It is con |