ceded that there is no statute giving a right of action in such case. The plaintiff's contention is: That recent decisions in this State recognize the existence of a right of action for damages for loss of service between death and majority; that at common law a father has an absolute legal right to the services and earnings of his minor son; that by reason of the defendants' negligence the plaintiff has been deprived of this right; that, as the party possessing the right and the one who has infringed upon it are both in existence, the question of the survival of actions, urged as a reason for the conclusion reached in Wyatt v. Williams, 43 N. H. 102, does not arise; and that what is there said inconsistent with this contention is obiter dicta and not material to the decision of the case. The recent cases upon which the plaintiff relies are Carney v. Railway, 72 N. H. 364, 57 Atl. 218, and Warren v. Railway, 70 N. H. 362, 47 Atl. 735; but neither of them can be said to support the plaintiff's contention. In the former the Court was considering the question of damages recoverable under our statute (Pub. St. 1901, c. 191, § 12) by an administrator of an estate of a minor child killed through the defendants' negligence, and it was held that the administrator could not recover for the child's "earning capacity" from the time of his death until he attained his majority, although he might from that time on, for the reason that under the statute "damages are to be assessed on the basis of the loss suffered by the deceased party and his estate," and that, if the son had lived, his earnings during minority, unless emancipated, would have belonged to his father, or in case of the father's death to the mother. It cannot be inferred from this holding that the Court understood, or undertook to intimate, that the father could have maintained a suit for the loss of the son's services from the time of his death until he reached his majority. In the latter case the death of the child was not shown to have been instantaneous. This appears from the charge of the Court to the jury. 209 Briefs and Cases, 609, 611. The statement in the opinion: "Had the child survived, the action would have been brought in its own name. The father's cause of action would have been what it is now, case for the loss of the child's services" - must be read with this fact in view, and, when so read, it has reference to the father's right of action for loss of services prior to death. In Wyatt v. Williams, supra, the Court said: "At common law, for the killing of a human being, no civil action could be maintained against the person who caused it, . . . by a person standing in the relation of . . . father or master to the person killed, and the law was the same, whether the act which caused the death was felonious or not.". And after discussing the various reasons assigned for the holding, it says that the rule is founded upon public policy, and if the reasons assigned "are various and not altogether consistent, yet the rule has been too long established, and too generally recognized as a settled principle of the common law, to be now shaken by anything short of a legislative Act." This case was decided in 1861, and from that day to this no action has been brought in which the parent has been allowed damages for loss of services after the child's death a fact reasonably conclusive as to the law in this State and of the understanding of the profession upon the subject. State v. Railroad, 52 N. H. 528, 548; Bedore v. Newton, 54 N. H. 117; Whitaker v. Warren, 60 N. H. 20, 49 Am. Rep. 302; Poff v. Telephone Co., 72 N. H. 164, 55 Atl. 891. But there seem to be other substantial reasons why this action cannot be maintained. . . . Because of these reasons, the decision in Wyatt v. Williams, and the fact that no action of this nature has ever been maintained in this State, we are of the opinion that the demurrer should be sustained. Demurrer sustained. All concur. 115. MOONEY v. CHICAGO SUPREME COURT OF ILLINOIS. 1909 239 Ill. 414, 88 N. E. 194 APPEAL from Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; A. H. Chetlain, Judge. Action by Vincent C. Mooney, administrator of the estate of Edward Dillon, deceased, against the City of Chicago. From a judgment for plaintiff, defendant appealed to the Appellate Court, where the judgment was affirmed, and an appeal taken to the Supreme Court. Reversed and remanded to the Superior Court. Edward J. Brundage, Corp. Counsel, and John R. Caverly, City Atty. (Edward C. Fitch, of counsel), for appellant. Frank V. Campe (A. L. Gettys, of counsel), for appellee. CARTWRIGHT, C. J. Appellee, who sued as administrator of the estate of Edward Dillon, deceased, recovered a judgment in the Superior Court of Cook County against appellant for $3,500 damages for causing the death of said Edward Dillon, and the Branch Appellate Court for the First District affirmed the judgment. The declaration in two counts charged the defendant with negligence in permitting Harrison Street, at the intersection of Clark Street, in the city of Chicago, to remain in a dangerous and unsafe condition by allowing several of the paving stones to be removed and remain absent and missing from the street, and allowing a large and deep hole and depression to exist in said street at said place. It was alleged that, while Edward Dillon was driving a team of horses attached to a wagon loaded with barrels, a wheel of the wagon ran into the hole and depression, by means whereof the wagon was broken, and he was thrown upon the pavement and received injuries which resulted in his death. The plea was the general issue. The declaration was amended on the trial by changing the name of the deceased to William Edward Dillon. . . Counsel for appellant, in stating the leading facts which the evidence proved or tended to prove, say . . . that Dillon was in the employ of James McKay; that after the accident he executed an instrument of release, in satisfaction for the damages resulting from the accident, acknowledging full satisfaction of any and all claims against McKay on account of the injuries sustained; and that McKay made the payments, specified in the release, to Dillon in his lifetime, and the balance to his widow. Counsel for appellee in their brief do not point out any inaccuracy in this statement so far as the evidence was concerned, and under the rule the statement will be taken as accurate and sufficient to present the question raised on the instructions. Instruction No. 6, given at the instance of the plaintiff, explained to the jury the rule of law. . . . The instruction also omitted all reference to an affirmative defence which, if established, would have defeated a recovery, and it is error to give an instruction ignoring matter of defence which there is evidence fairly tending to prove. Miller v. Cinnamon, 168 Ill. 447, 48 N. E. 45; Gorrell v. Payson, 170 Ill. 213, 48 N. E. 433. If the release executed by Dillon to McKay operated as a bar to the action, a verdict of guilty could not be found upon the facts stated in the instruction. Both parties asked, and the Court gave instructions concerning the effect of the release. On the part of the plaintiff the Court told the jury that, if the defendant alone was liable for the injury, the release would not be material in the case, and at the request of the defendant the jury were advised that, if Dillon executed the instrument, and the injury was due to the joint negligence of McKay and the defendant, the instrument operated as a bar to the action, and they should find the defendant not guilty. It was a question whether the accident would have resulted, even if the street was in a defective condition, if the skein of the axle had not been worn through and the axle thereby weakened. If a defective condition and a worn axle concurred, and both the defendant and McKay were guilty of negligence, they would both be liable, and a release of one would release the other. The Appellate Court, in dealing with the question, expressed the opinion that the cause of action released or satisfied by the instrument was an entirely different one from the statutory cause of action; that the release had no relation to the case, and was erroneously admitted in evidence, and was therefore properly ignored in the instructions. This view of the law is erroneous, and not in accord with the authorities. There was but one cause of action, and there could be but one recovery or satisfaction. A cause of action in suits for damages arising from negligence is the act done, or omitted to be done, by the defendant affecting the plaintiff which causes a grievance for which the law gives a remedy. Swift & Co. v. Madden, 165 Ill. 41, 45 N. E. 979. In suits like this, the cause of action is the wrongful act, neglect, or default causing death, and not merely the death itself. Holton v. Daly, 106 Ill. 131; Crane v. Chicago & Western Indiana Railroad Co., 233 Ill. 259, 84 N. E. 222. The statute gives a right unknown to the common law in cases where the wrongful act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages. One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death. There being but one cause of action, there can be but one recovery; and, if Dillon had released the cause of action, the statute does not confer upon his administrator any right to sue. Holton v. Daly, supra; Southern Telephone Co. v. Cassin, 111 Ga. 575, 36 S. E. 881, 50 L. R. A. 694; Read v. Great Eastern Railway Co., L. R. 3 Q. B. 555; 8 Am. & Eng. Ency. of Law (2d ed.) 870; 13 Cyc. 325; 6 Thompson on Negligence, § 7028; 3 Elliott on Railroads, § 1376; Legg . Britton, 64 Vt. 652, 24 Atl. 1016; Strode v. Transit Co., 197 Mo. 616, 95 S. W. 851; Littlewood v. Mayor of New York, 89 N. Y. 24, 42 Am. Rep. 271; Hill v. Pennsylvania Railroad Co., 178 Pa. 223, 35 Atl. 997, 35 L. R. A. 196, 56 Am. St. Rep. 754; Brown v. Chattanooga Electric Railway Co., 101 Tenn. 252, 47 S. W. 415, 70 Am. St. Rep. 666. . . . Instruction No. 6 was erroneous in ignoring the defence of a release. The judgments of the Appellate Court and Superior Court are reversed, and the cause is remanded to the Superior Court. Reversed and remanded.1 SUB-TOPIC C. EFFECT OF THE STATUTES AS SURVIVING A CAUSE (1) FOR THE DECEASED'S CORPORAL INJURY, OR 116. HOLLENBECK, ADMINISTRATOR v. BERKSHIRE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1852 9 Cush. 478 THIS was an action on the case, brought in this Court by the plaintiff, as administrator of Mrs. Hollenbeck, for damage sustained by her, through the negligence of the defendant's agents, by means of which she lost her life. The writ was dated February 8, 1851, and the following facts were admitted, namely: That the plaintiff's intestate was, on the 18th day of October, 1850, [For problems under this topic, see the notes to No. 121, post.] between five and six o'clock in the afternoon, riding in an open buggy wagon, upon the highway in Great Barrington, at a point where it is crossed by the railroad of the defendants; that she was driving the horse, and was then and there in the exercise of ordinary care; that the horse and wagon then and there came in collision with the cars of the defendants, and the plaintiff's intestate thereby received such injuries, that by reason thereof she subsequently died; that the accident or collision was caused solely by the negligence and want of care and skill of the defendants; that the plaintiff was appointed administrator of the estate of the deceased, February 5, 1851, and that, at the time of the accident, she was a married woman, and the wife of the plaintiff. And if the administrator can maintain an action for the above injuries, all other facts necessary to sustain such action are to be considered as proved, except so far as relates to the time of the death of the intestate, and her mental or physical condition after the injury, which are to be determined by the Court from the evidence introduced, from which evidence the Court are to draw such inferences, and come to such conclusions of fact, as a jury would be authorized to do. At the suggestion of the presiding judge, it is further provided that, if the Court deem it a case that they require to be sent to the jury, then all matters of law are to be settled that are presented upon the evidence. . . If, upon the agreed statement of facts and testimony, the Court shall be of opinion that a claim for damages for the injuries received can be maintained by the plaintiff, in this or any other form of action, the defendants are to be defaulted and judgment rendered for five hundred dollars damages, and costs. If the Court shall be of opinion that no such action can be maintained, the plaintiff is to become nonsuit. G. N. Briggs, for the plaintiff. 1. The plaintiff's intestate survived the injury. 2. Hence the cause of action accrued, and survived to the administrator, and the mental or physical condition of the party injured is not material to the question in this case. 3. The mental and physical condition of the intestate, after the injury, was such, in fact, that it was not impossible for her to have directed the institution of an action after her decease. F. Chamberlin (with whom was W. Porter), for the defendants. Mrs. Hollenbeck could not have instituted or maintained an action after the collision; consequently this action cannot be maintained by the plaintiff as her administrator.. SHAW, C. J. This is an action on the case, by an administrator, for damage sustained by Mrs. Hollenbeck, the plaintiff's intestate, by the negligence of the engineers, conductors, and managers of the defendants, by means of which she lost her life. The question presented for the consideration of the Court, in the present case, is, whether the facts, stated in the report, show a cause of action which accrued to the intestate in her lifetime, and which survived to her administrator, by force of the St. 1842, c. 98, § 1. |