relations between the parties at the time of and prior to his death, his services in assisting her to care for the family, and the loss of support which he was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he probably would have occupied according to his past history in that respect, and his reasonable expectations in the future, such earnings and acquisitions to be estimated upon the basis of the deceased's age, health, business capacity, habits, experience, energy, and his present and future prospects for business success at the time of his death. . . . . She is also entitled to compensation for the loss of whatever she might reasonably have expected to receive in the way of dower or legacies from his estate, in case her life expectancy be greater than his. The sum total of all these elements is to be reduced to a money value, and its present worth to be given as damages. . . The jury, in considering the proper elements of damages, may exercise a reasonable discretion as to the amount to be awarded, based upon the facts in evidence and the knowledge and experience possessed by them in relation to matters of common knowledge and information." 120 That portion of the foregoing statement to the effect that the loss of the comfort and society of the husband may be taken into consideration in estimating the damages, is not adopted to any great extent in the various states in cases involving the death of a human being, and rather conflicts with another general rule which is quite universal, that the jury cannot take into con

120 Florida C. & P. R. Co. v. Foxworth, 41 Fla. 1, 79 Am. St. Rep. 149, 25 South. 338. See extensive note, 12 Am. St. Rep. 375, on "Elements and Measure of Damages in Actions for Having Caused the Death of Human Beings."

sideration mental suffering. In California, under a statute providing that "such damages may be given as, under all the circumstances of the case, may be just," it has been held that damages for mental anguish of the husband, wife or parent, as well as for loss of society, may be awarded. The court distinguished "loss of comfort, society, and protection of the deceased," from "sorrow, grief and mental suffering," and disclaimed any intention of allowing for the latter, or of evading the rule against it.121 In other states it has been held that the jury may not be confined to pecuniary damages.122 The court adopting the rule as first stated above, points to the fact that the law allows recovery of damages for being deprived of the society of the consort for mere personal injuries, which has never been considered speculative or fanciful.13 It is perhaps safer to say that in this class of cases the law will allow nothing more than the pecuniary loss, as shown by the proof and measured by a pecuniary standard. The extent of this loss should not be measured by the wealth or poverty of the parties, but by the earnings of the deceased, his health, etc., as shown by the evidence.124

§ 478. Same Continued-Use of Life Expectancy Tables. It is for the jury to determine the expectancy of the life of the deceased, and the court should

121 Munro v. Pacific Coast etc. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303. See note, 12 Am. St. Rep. 376, and cases; Beeson v. Green Mt. etc. Co., 57 Cal. 20.

122 Matthews v. Warner, 29 Gratt. 570, 26 Am. Rep. 396; Baltimore etc. R. R. Co. v. Wightman, 29 Gratt. 431, 26 Am. Rep. 384; Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270.

123 Furnish v. Missouri Pac. Ry., 102 Mo. 669, 22 Am. St. Rep. 800, 15 S. W. 315; Pepper v. Southern Pac. Co., 105 Cal. 389, 38 Pac. 974.

124 English v. Southern Pac. Co., 13 Utah, 407, 57 Am. St. Rep. 772, 45 Pac. 47.

not instruct them as to the period of expectancy of life of the deceased as fixed by mortuary tables. They may, however, be allowed to consider the results shown by standard life tables in determining the probable duration of life.125 But such tables are not the sole guide, as testimony of witnesses may be taken upon the same point.120

§ 479. When Action may be Maintained in State Other than Where Death Occurred. The general rule relating to the venue of actions arising out of torts is, that where the action is transitory and based upon personal injuries recognized as such by universal law, the suit may be brought wherever the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was committed.127 A right of action for the wrongful death of a human being, not being one which existed at common law, but purely statutory, it cannot be said to be based upon personal injuries recognized by universal law, although it is now matter of common knowledge that there are such statutes in almost, if not every, state in the Union. But where the wrong occurs in one state, even where death actually takes place in another state, the right of action depends upon, and is measured by, the statute of the state where the "wrongful act" was committed. And we have seen how particular we must be in bringing our case within the statute.128 There is no power within the state

125 Donaldson v. Mississippi etc. R. R. Co., 18 Iowa, 280, 87 Am. Dec. 391; Santer v. New York etc. R. R. Co., 66 N. Y. 50, 23 Am. Rep. 18; Alabama etc. R. Co. v. Jones, 114 Ala. 519, 62 Am. St. Rep. 121, 21 South. 507; English v. Southern Pac. Co., 13 Utah, 407, 57 Am. St. Rep. 772, 45 Pac. 47.

126 Pennsylvania R. R. Co. v. Henderson, 51 Pa. St. 315. 127 Rorer on Interstate Law, 154, 155.

128 Ante, secs. 470, 471.

to give to the statutes an extraterritorial effect. One court states the doctrine thus: "Our state, in providing that the negligent killing of an individual shall constitute a cause of action in certain of his survivors for damages is providing only for cases occurring within her own borders. She makes that an actionable tort which was not so before by the common law. Within her own jurisdiction the law is changed by reason of this statute, but it remains the same everywhere else; and the death of the husband through the negligence of a railroad company, if the injury occurred in the Indian Territory, was no more a cause of action after the passage of the statute than it was before. The government exercising authority in the locality where this act was committed is the only one to determine and provide whether or not such an act shall be a good ground for a suit in behalf of anyone, and to name the parties in whom the cause of action shall exist. It is not the mere giving a remedy for a right previously possessed, but it is the creation of a right itself in certain parties which before belonged to no one whatever. Hence it is held in states having statutes like our own, that the parties named in the domestic statute cannot sue in the state where it was enacted for damages caused by a negligent killing, which has occurred in another. This principle is universally recognized where such statutes prevail." This is

99 129

129 Willis v. Missouri Pac. Ry., 61 Tex. 432, 48 Am. Rep. 301; Hyde v. Wabash, St. Louis etc. Ry., 61 Iowa, 441, 47 Am. Rep. 820, 16 N. W. 351; Richardson v. New York Cent. R. Co., 98 Mass. 85; Selma R. & D. R. Co. v. Lacy, 43 Ga. 461; McCarthy v. Chicago etc. R. Co., 18 Kan. 46, 26 Am. Rep. 742; Whitford v. Panama R. Co., 23 N. Y. 465; Debevoise v. New York etc. R. R. Co., 98 N. Y. 377, 50 Am. Rep. 683; Herrick v. Minneapolis etc. Ry., 31 Minn. 11, 47 Am. Rep. 771, 16 N. W. 413; Usher v. West Jersey Ry. Co., 126 Pa. St. 206, 12 Am. St. Rep. 863, 17 Atl. 597; Taylor v. Pennsylvania Co., 78 Ky. 348, 39 Am. Rep. 244; Richardson v. New York Cent.

a good statement of the rule that obtained with reference to this matter up to a recent period. It is held that where such action is brought in a state other than where the right of action arose, that it is presumed, in the absence of any allegation and proof as to what the law of the place is in relation to the alleged cause of action, that the common law remains in force.130 A statute conferring the right to recover for the death of a person is held not to confer such right upon nonresident aliens,181 though in Massachusetts it is held that an an alien parent (mother) is entitled to recover.1 Statutes of comity are now being enacted, allowing such actions to be brought in states other than where the right of act on arose, whenever such other state has a similar statute, but only upon that condition.133 But such actions are still being denied in some states unless there is a statute of comity or similar statutes in both states.134.

$480. Same Continued-Doctrine of Comity of Actions Adopted by United States Supreme Court Followed to Some Extent in This Class of Actions. The

R. R. Co., 98 Mass. 85; Needham v. Grand Trunk Ry. Co., 38 Vt. 295; State v. Pittsburgh etc. R. R. Co., 45 Md. 41.

130 State v. Pittsburgh R. R. Co., 45 Md. 41; Selma etc. R. R. Co. v. Lacy, 43 Ga. 461; Knight v. West Jersey R. R. Co., 108 Pa. St. 250 (opinion).

131 Deni v. Pennsylvania R. Co., 181 Pa. St. 525, 59 Am. St. Rep. 676, 37 Atl. 558.

132 Mulhall v. Fallon, 176 Mass. 266, 79 Am. St. Rep. 309, 57 N. E. 386.

133 See note, 136, post; Wooden v. Western New York etc. R. R. Co., 22 Am. St. Rep. 803; Boyce v. Wabash Ry. Co., 63 Iowa, 70, 50 Am. Rep. 730, 18 N. W. 673; Bruce v. Cincinnati R. R. Co., 83 Ky. 174.

134 Davis v. New York etc. R. Co., 143 Mass. 301, 58 Am. Rep. 138, 9 N. E. 815; Vawter v. Missouri Pacific Ry. Co., 84 Mo. 679, 54 Am. Rep. 105; The Wabash R. R. Co. v. Fox, 64 Ohio St. 133, 83 Am. St. Rep. 739, 59 N. E. 888.