§ 475. Same Continued - The Doctrine in lowa and Virginia Discussed. The doctrine last stated in the previous section is denied in Iowa and Virginia. It is there held that an administrator may recover for fatal injuries to his intestate, an irresponsible child incapable of committing negligence, when such injuries are caused by the wrongful and negligent acts of the child's parents, or of others having him in charge, even though the negligent parents will inherit the amount recovered. The writer must confess that he has some sympathy for the cases in the minority upon this question, due perhaps to his hav ing been on that side of the controversy,112 although it will be conceded that the position is somewhat technical, and perhaps ignores a fundamental principle, viz., that no recovery should ever be allowed in favor of a person who has been negligent with reference to the particular transaction. The statute prescribes the single test, viz., freedom of the deceased from negligence, and to consider the negligence of the beneficiaries as a defense to this new action is reading into the statute by judicial construction something which is not there. The decisions in Iowa and Virginia are perhaps due to a misapprehension of the applicability of the doctrine of imputed negli gence to this kind of a case. The conclusion in these cases seems to have been reached mainly upon the rule that the negligence of the parents should not be imputed to the infant, and following the test of the

St. Rep. 450, 35 N. E. 84; Wolf v. Lake Erie etc. Ry. Co., 55 Ohio St. 517, 45 N. E. 708; Tiffany on Wrongful Death, secs. 68-70; Williams v. Railway Co., 60 Tex. 205; Wisterberg v. Kinzua Creek etc. R. R. Co., 142 Pa. St. 471, 24 Am. St. Rep. 510, 21 Atl. 878; Wiswill v. Doyle, 160 Mass. 42, 39 Am. St. Rep. 451, 35 N. E. 107; Chicago v. Mayor, 18 Ill. 349, 68 Am. Dec. 553; Chicago v. Hesing, 83 III. 204, 25 Am. Rep. 378.

112 Wolf v. Lake Erie Ry. Co., 55 Ohio St. 534, 45 N. E. 708.

statute, if the deceased himself could, had he lived, have maintained the action, then his personal representative may, because the action is for the benefit of the estate. These decisions appear to be clearly wrong. In the first place, the doctrine of imputed negligence is not called in question here, but rather another and wholly different fundamental principle, viz., that recovery will never be allowed in favor of a wrongdoer. Again, the contention that has been made for this view, that recovery under the statutes of these states is for the benefit of the estate of the deceased, and therefore different from other states, does not seem well founded. An examination of the statutes will disclose that while the recovery is for the benefit of the estate, the statutes further name the persons for whose benefit it is, and in one of the states the statute provides that the amount recovered shall not go to the payment of debts due from the deceased. In this there seems to be no substantial difference in effect from other statutes. In closing, the reason for these decisions is given in the language of the courts. "In this case, the child was taken into the wagon, and exposed to the accident which resulted in his death, without volition on his part. He certainly was free from fault. If his parents, by their negligence, contributed to his death, that does not seem to us to be sufficient reason for denying his estate relief. . . . . It is claimed that appellant [parent] ought not recover, for the reason that it is not shown that the parents of the child were free from contributory negligence; and since they inherited his estate, the rule which would bar a negligent parent from recovering in such a case in his own right ought to apply. But plaintiff seeks to recover in the right of the child, and not for the parents. It may be that a recovery in this case will result in conferring an

undeserved benefit upon the father, but that is a matter which we cannot investigate. If the facts are such that the child could have recovered had his injuries not been fatal, his administrator may recover the full amount of damages which the estate of the child sustained."113 This is following the statutes strictly, and this we know we must do in the matter of bringing the action for the benefit of those named in the statute. It might equally be contended that the statutes place the limit upon the defenses that may be made when they provide that the action may be maintained, if the deceased, had he lived, could have done so. We must concede that the ruling of the courts as set forth in the last section, that contributory negligence of the beneficiaries may be shown, is a matter of pure judicial adjudication not found directly or incidentally in the statutes. Legislative action is needed to clear the matter.

§ 476. Measure of Damages.-The statutes usually place a limit upon the amount of damages recoverable in such actions. The language of the different statutes vary in terms, such damages being allowed as the jury may deem fair and just compensation to the pecuniary injuries, or such damages "as to the jury may seem fair and just," "proportioned to the injury," and the like. The general rule gathered from the authorities appears to be that the jury in assessing damages are confined to injuries of which a pecuniary estimate can be made; the law will allow nothing more than the pecuniary loss as shown by the proof and measured by a pecuniary standard.

113 Wymore v. Mahaska County, 78 Iowa, 396, 16 Am. St. Rep. 449, 43 N. W. 264; Norfolk etc. R. R. Co. v. Groseclose, 88 Va. 267, 29 Am. St. Rep. 718, 13 S. E. 454; Westerfield v. Levis Bros., 43 La. Ann. 63, 9 South. 52; see Glassey v. Hestonville etc. Ry. Co., 57 Pa. St. 172.

It appears

Each case must stand on its own merits. to be the rule that without any special showing, nominal damages may be recovered, but if the plaintiff would recover more than mere nominal damages, he must bring forward such proof as will warrant a recovery for a larger amount. Pecuniary loss alone is the measure.114 In arriving at this pecuniary loss, the jury may consider the age of the deceased, his health, his ability and disposition to labor, his habits of living, and his expenditures. "The true measure of damages is the pecuniary loss suffered, without any solatium for mental suffering or grief; and the pecuniary loss is what the deceased would probably have earned by his labor, physical or intellectual, in his business or profession, if the injury that caused his death had not befallen him, and which would have gone to the support of his family. In fixing this amount, consideration should be given to the age of the deceased, his health, his ability and disposition to labor, his habits of living, and his expenditures." 115

114 Steel v. Kurtz, 28 Ohio St. 191; McHugh v. Schlosser, 159 Pa. St. 480, 39 Am. St. Rep. 699, 28 Atl. 291; English v. Southern Pac. Co., 13 Utah, 407, 57 Am. St. Rep. 772, 45 Pac. 47; Little Rock etc. R. R. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; Telfer v. Northern R. R. Co., 30 N. J. L. 188; Liermann v. Chicago etc. Ry. Co., 82 Wis. 286, 33 Am. St. Rep. 37, 52 N. W. 91; Missouri Pac. Ry. Co. v. Moffatt, 60 Kan. 113, 72 Am. St. Rep. 343, 55 Pac. 837; Alabama etc. R. R. Co. v. Jones, 114 Ala. 519, 62 Am. St. Rep. 121, 21 South. 507. See extensive note, 12 Am. St. Rep. 637, where numerous cases are collected on the question of damages.

115 Mansfield Coal Co. v. McEnery, 91 Pa. St. 185, 36 Am. Rep. 662; McHugh v. Schlosser, 159 Pa. St. 480, 39 Am. St. Rep. 699, 28 Atl. 291; Bessemer L. & I. Co. v. Campbell, 121 Ala. 50, 79 Am. St. Rep. 17, 25 South. 793. "The age, health, condition in life, occupation, habits of industry and sobriety, mental and physical capacity, disposition to frugality, opportunities and customary earnings of the deceased," are to be considered: Taylor v. Western etc. R. R. Co., 45 Cal. 323; Donaldson v. Mississippi etc. R. R., 18 Iowa, 280, 87 Am. Dec. 391; Shaber v. St. Paul etc. R. Co., 28 Minn. 103, 9 N. W. 575; Kesler v. Smith, 66 N. C. 154; Chicago v. Scholton, 75 Ill. 468.

Opportunities for acquiring wealth by a change of circumstances in life cannot be considered.116 There can be no recovery for loss of companionship and association, and injury to a parent's feelings.117 The primary purpose of these statutes was to limit the measure of damages to pecuniary loss and to exclude such injuries as affect the sentiments, affections or feelings of the beneficiaries. This is so universal and well understood that but few authorities are cited.118 The life of a person is considered as purely a matter of merchandise. Exemplary damages are not ordinarily recoverable unless made so by statute, because, as a rule, no such damages are allowed in actions ex delicto not involving malice.119

§ 477. Same Continued-Proper Elements of, in Action by Widow for Death of Husband.-We can furnish no better statement or practical guide for instructing the jury in this class of cases than is found in a recent Florida case, excepting as relating to loss of society, which will be discussed later. "In estimating the pecuniary loss to a widow, in consequence of the death of her husband, it is held that the jury may properly take into consideration her loss of his comfort, protection and society, in view of his character, habits, and conduct as husband, and of the marital

116 Mansfield C. & C. Co. v. McEnery, 91 Pa. St. 185, 36 Am. Rep. 662.

117 Little River etc. Ry. v. Barber, 33 Ark. 350, 34 Am. Rep. 44. 118 Steel v. Kurtz, 28 Ohio St. 191; Blake v. Ry. Co., 10 Eng. L. & E. 437; Donaldson v. Mississippi R. R. Co., 18 Iowa, 280, 87 Am. Dec. 391; Southern Cotton Press Co. v. Bradley, 52 Tex. 587. See Kennedy v. Standard Sugar Ref. Co., 125 Mass. 90, 28 Am. Rep. 214; Holton v. Daly, 106 Ill. 131. See extensive note, and cases, 48 Am. Dec. 637, 12 Am. St. Rep. 375, note, and cases.

119 Louisville etc. R. R. Co. v. Brooks, 83 Ky. 129, 4 Am. St. Rep. 135; Pennsylvania R. R. Co. v. Vandever, 36 Pa. St. 298. See note, 12 Am. St. Rep. 377, and cases.

Torts, Vol. II-58