used and understood by the parties to this contract, is apparently not discoverable from the agreement itself. It would seem that this brief expression, to the common understanding, and when used in connection with an insurance against .fire, conveys quite unmistakably the meaning expressed, within the intention of the contracting parties. But the plaintiffs contend that the expression has other and more comprehensive meaning in the locality where the property destroyed was situated, and, with the introduction of extrinsic evidence, urge that there it may and does mean a clearing in a forest. 'It would seem, however, that upon principle, for a party to be bound by a local usage, he must be shown to have knowledge or notice of its existence. .. Usage is en

grafted upon a contract or invoked to give it a meaning, on the assumption that the parties contracted in reference to it; that is to say, that it was their intention that it should be a part of their contract wherever their contract in that regard was silent or obscure. But could intention run in that way unless there was knowledge of the way to guide it? No usage is admissible to influence the construction of a contract unless it appears that it be so well settled, so uniformly acted upon, and so long continued, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference thereto. There must be some proof that the contract had reference to it, or proof arising out of the position of the parties, their knowledge of the course of business, or other circumstance from which it may be inferred or presumed that they had reference to it.'"

In Smith v. Clayton, 29 N. J. L. 357, the court, holding that evidence of the meaning of the word "grain" as used in a lease, was inadmissible, said: "As to the remaining question, whether evidence was properly received to show the meaning of the word grain, what has already been said would render a decision on this point unnecessary, if it had not been certified to this court. The word is not a technical term, the signification of which is only known to those of the trade. In such a case parol evidence is admitted of necessity for the same reason that an interpreter must be employed to translate a paper written in an unknown tongue, and it has always been admitted. . . . An usage may be shown by parol evidence, and some of the cases go so far as to permit evidence that an English word, not a term of art or peculiar to a particular trade or occupation, has a peculiar provincial signification different from its natural meaning, as that a dozen means thirteen. The evidence was not offered for any such purpose. It was to show the meaning of a common English word, in

The refusal of instructions fully covered by those given is not error.

Death by Wrongful Act -Measure of Damages.

The measure of damages for wrongful death is the value of decedent's life to his estate, had he not perished.

[See 12 Am. St. Rep. 375; 8 R. C. L. tit. Death, p. 822.]

Evidence of Domestic Relations of Deceased.

In an action for wrongful death, evidence of the number of children of deceased is admissible, just as the fact of his marriage, to show an incentive to thrift and accumulation.

[See note at end of this case.] Same.

In an action for wrongful death, where the court admitted evidence of the number and ages of decedent's children, an instruction that the amount of damages could not be increased by reason of decedent's having left children, and that the evidence was admitted

In an action for wrongful death, the erroneous exclusion of evidence that deceased could not obtain life insurance is harmless. Death by Wrongful Act Evidence Complaints of Suffering. In an action for wrongful death, while the administrator is not entitled to recover for deceased's conscious suffering, evidence of complaints made by deceased of pain and suffering soon after the injury is admissible as bearing on the extent and location of his injuries.

Damages Not Excessive.

An award of $8,000 in favor of the administrator of a deceased boiler maker, who was earning from $56 to $108 per month at the time defendant's negligence caused his death, is not excessive, even though he was not a man of robust health; it appearing that he was not incapacitated at the time of the fatality.

[See Ann. Cas. 1915C 449.]

Appeal from District Court, Benton county: BRADSHAW, Judge.

Action for death by wrongful act. Edna E. Nicoll, plaintiff, and Emma R. Sweet, administratrix, et al., defendants. Judgment

for plaintiff. Defendants appeal. The facts are stated in the opinion. AFFIRMED.

Dawley & Wheeler and Tom H. Milner for appellants.

D. L. Johnson and C. W. E. Snyder for appellee.

[684] WEAVER, C. J.-McNulty was injured by the falling of a cornice into the public street from a building owned by Sweet. Eight days after the accident, McNulty died of pneumonia, which plaintiff alleges was caused by the injuries so received, and the claim of damages is based upon that theory.

It is strongly contended upon the part of the appellant that the record shows no evidence from which this fact could be found in favor of plaintiff. It is true that the testimony tends to show that McNulty was not in robust health at the time of his injury, that he had recently suffered from bronchitis and had some indications of weakness of the lungs; but the [685] fact of ill health or physical weakness, if established or conceded,

is by no means inconsistent with plaintiff's theory that the pneumonia which was the immediate cause of death was the direct result of the blow received from the falling brick. Indeed, such weakened condition, if it existed, may have rendered the deceased an easier victim of the fatal disease; yet if there was evidence for the jury that pneumonia was the direct result of the injury, and such injury was fairly chargeable to the negli gence of Sweet, the state of the deceased's health would in no manner affect the right of action on the part of his administratrix, though it may have bearing on the amount of the recovery. That there was evidence to go to the jury on both questions is scarcely open to doubt. On the matter of the alleged negligence, the fall of the cornice doubtless presented a case for applying the doctrine of res ipsa loquitur, to say nothing of other evidence bearing upon the situation. Concerning the relation of cause and effect between the injury received and the disease of which the intestate died, it may be said that the medical testimony on the part of plaintiff tended to show that the pneumonia was of traumatic origin; that is, pneumonia, the inciting cause of which was some physical violence or bodily injury. It is also shown that, from such an injury as the deceased suffered, pneumonia is likely to follow as a natural consequence. No other injury or efficient cause for the disease is suggested, and the question thus presented is one of fact and not of law. Brownfield v. Chicago, etc. R. Co. 107 Ia. 254, 77 N. W. 1038; Lehmann v. Minneapolis, etc. R. Co. 153 Ia. 124, 133 N. W. 327.

The jury was fairly and correctly instructed upon this proposition. The defendant's request for an instruction that the burden was upon the plaintiff to show that the injuries to McNulty did cause pneumonia, and if she failed in this respect she could not recover, stated a correct legal proposition, but it was fully covered and stated in the instructions which the court gave upon its own motion.

[686] The principal debatable question upon this appeal is the following: The surviving wife of McNulty, testifying as a witness, was permitted to say, over the objection of defendant, that the deceased left a family consisting of a wife and four children ranging from one to ten years of age. Referring to this feature of the evidence, the court told the jury that, if they found the plaintiff entitled to recover, the amount of damage to be assessed in favor of the estate of the deceased "is not to be increased by reason of his having children which he left surviving him; evidence of his children and the number thereof being admitted by the court as having bearing upon the question of

inducement or incentive to habits of industry in case the deceased had lived."

Error is assigned upon the admission of the testimony and upon the instruction to which we have referred. It is to be admitted that authority is to be found for the position of the appellant, and cases are not wanting in which recoveries in actions for damages sustained by reason of the death of a person bave been set aside because of admission of proof that the deceased left wife and children surviving him. It is a matter, however, on which the precedents are not in harmony, and a majority of this court, after quite careful deliberation, is of the opinion that the better reason is with the rule holding the evidence competent. Practically the only objection of any plausibility to its admission is that its tendency is to excite the sympathies of the jurors and induce undue liberality in the assessment of damages. But, as is well known to all persons who have observed the course of litigation in matters of this kind, it is utterly futile to hope to keep the fact from the knowledge of the jury. More often than otherwise the widow and children are in the courtroom. If not, the facts concerning the victim of a fatal accident, his family, and their circumstances are public property, upon every tongue; they are mentioned in public print, talked about on the street corners and places where men meet and [687] congregate; they crop out incidentally in the court room; and, even though the evidence be rigidly excluded on the trial, no juror enters upon the consideration of his verdict in ignorance of the actual situation in this respect. Even as a mere matter of protection of the interests of the defendant, it is at least an open question whether it is not better that the testimony of all these conditions surrounding the deceased at the time of his injury should be admitted under the sanction of an oath and its bearing and effect regulated and controlled by appropriate instructions. If it be said that a juror's sympathies may control his actions even to the extent of disregarding the court's instructions, that suggestion, if sound, is no less applicable where the influencing fact comes to the juror's knowledge from sources other than the testimony or by absorption from the atmosphere in which the case has been tried. But the average jury is not made up of weaklings. Its members as a rule have an intelligent conception of their duties and obligations.

It is correct to say, as does the appellant, that the only true measure of recovery for the death of an individual is the value of his life to his estate, had he not come to such untimely end. It is hardly too much to say that this rule is vague, uncertain, and speculative, if not conjectural, but it is the best

which judicial wisdom and experience have yet been able to formulate. No evidence is possible of the time which deceased would have lived but for the injury complained of. Had he avoided this injury, death may have met him the next day, week, or year in some other form. In business he might have become a phenominal success and accumulated millions, or he might have lived to old age and died a pauper. From being a man of good habits and prudence and industry, he might have become a spendthrift or a tramp, or if a man of dissolute habits he might have reformed into an efficient and prosperous citizen. But the demands of justice will not tolerate the idea that human life may be extinguished by the tort of another without the wrongdoer being held to answer [688] therefor in damages, and the rule we have stated is the one which has been devised for this purpose. The principle which underlies it is of unquestionable soundness, but the difficulty which besets its practical application is in the fact that it calls for an estimate or conclusion which must be arrived at by a balancing of mere probabilities and possibilities which we deduce by way of inference from the age, character, habits, condition, education, employment, surroundings, and apparent capacity of the deceased. Fairness to the beneficiaries of the estate on the one hand and of the defendant on the other require that the jury be put in possession of all the facts having the slightest legitimate bearing upon this intricate problem. It is concededly the law of this state that in such case the plaintiff may show that the deceased was a married man. Wheelan v. Chicago, etc. R. Co. 85 Ia. 178, 52 N. W. 119. This is said to be competent because "it may fairly be assumed that a married man will be more frugal and industrious and hence will accumulate a larger estate than a single man." Beems v. Chicago, etc. R. Co. 58 Ia 158, 12 N. W. 222.

In Donaldson v. Mississippi, etc. R. Co. 18 Ia. 290, 87 Am. Dec. 391, the question presented in the case now before us was raised in the following manner. The action like the one at bar was brought by the administrater to recover damages for the death of his intestate. Plaintiff offered testimony showing the family of the deceased and their respective ages, as well as his occupation, earnings, and accumulations. The defendant objected thereto on the ground that the inquiries were improper, immaterial, and not the correct method for the ascertainment of the damages. The trial court instructed the jury that, if plaintiff was found entitled to recover, he would be entitled to recover such damages as the estate of deceased had suffered by reason of his death, and nothing should be allowed on account of his pain and

suffering before death or for the grief and distress of the family or for their loss of his society. Passing upon the defendant's assignment of error in this respect, this court then said: "When a jury is thus guarded [689] against the allowance of damages for improper causes, it would seem that no prejudice would result if the jury should be fully advised of the exact situation of the deceased, his occupation, annual earnings, age, health, habits, family, and estate. Many of these, and possibly other facts, may have just influence in determining the pecuniary damage to the estate. We would not be understood, however, as determining that evidence as to the number and ages of his children is strictly proper." It would seem from this quotation that, while the statement of facts and argument indulged in by the court indicated its view that the testimony was admissible, yet, as in any event its admission was not prejudicial, the question whether it was technically or "strictly proper" was left undecided.

In the later case of Beems v. Chicago, etc. R. Co. 58 Ia. 150, 12 N. W. 222, three members of the court held to the view that such evidence was inadmissible, while the other two, Beck and Rothrock, JJ., reached the opposite conclusion. Somewhat singularly the Donaldson case was not referred to and was apparently overlooked. Indeed, there was no discussion of authorities except a brief mention of Simonson v. Chicago, etc. R. Co. 49 Ia. 87, where it was held generally that the jury was entitled to know all the circumstances surrounding the deceased affecting his capacity and disposition for earning a living. Since that time the Beems case has been cited in a criminal case (State v. Rutledge, 135 Ia. 581, 113 N. W. 461) and a bastardy case (State v. Wangler, 151 Ia. 555, 132 N. W. 22), but under circumstances so foreign to those with which we are now dealing that they cannot be said to be in point. As applied to the question before us, we think it must be said that the authority of that precedent has not only been discredited but abandoned.

Bearing upon that proposition, let us first notice that in Hunt v. Chicago, etc. R. Co. 26 Ia. 363, Simonson v. Chicago, etc. R. Co. 49 Ia. 87, and Moore v. Central R. Co. 47 Ia. 692, we held it competent for the plaintiff in a personal injury case [690] to prove that the injured person was a poor man and had a family dependent upon him for support. In the Simonson case it was said: "The jury was entitled to see the deceased as he was viewed with reference to his prospective capacity and disposition for earning and saving money. No data could be given them for a computation. Taking deceased as he was shown to them, it was for them to

say, from their knowledge of business life and all its contingencies, what was

.

with

the pecuniary injury sustained reference to his prospective estate." In this connection it is further said that either party might have shown his habits in regard to the use of intoxicating liquor "and in regard to anything else which affected his prospective savings and earnings."

In Stafford v. Oskaloosa, 64 Ia. 258, 20 N. W. 174, the question was against raised, and, after citing approvingly the Hunt, Moore, and Simonson cases, the court proceeds to notice the Beems case as follows: "But in the subsequent case of Beems v. Chicago, etc. R. Co. 58 Ia. 150, 12 N. W. 222, it was held by a majority of the court that evidence of the number of the intestate's family, though offered simply as a circumstance tending to stimulate his industry and economy, was incompetent. The majority of the court, as now constituted, are now content to adhere to the holding in Hunt v. Chicago, etc. R. Co. and Moore v. Central R. Co. and the grounds on which the holding is placed."

In the later case of Fish v. Illinois Cent. R. Co. 96 Ia. 707, 65 N. W. 995, where question was raised upon the competency of evidence showing accumulations of the deceased, reliance was placed by the defendant upon the Beems case, where the majority seems to class proof of this character with proof of the family relations of the deceased and holds both incompetent. Upon this objection the court again remarks: "All that can be said of that case is that it denies the right of showing accumulations with a view to enhance damages because of it, but the case recognizes the right to show that deceased was dependent on his earnings, and had no money, as a probable inducement [691] to industry. . It is not intended by what

is said in this opinion to commit this court, as now organized, to an approval or disapproval of the rule of. Beems v. Chicago, etc. R. Co. should the question therein as to such evidence hereinafter arise."

In Lowe v. Chicago, etc. R. Co. 89 Ia. 420, 56 N. W. 519, evidence was admitted apparently without question that the deceased was married, left no estate, and that his earnings had been applied to the support of his wife and family; and the court in its opinion cites these facts as circmstances to be considered in estimating the value of his life to his estate.

In Wheelan v. Chicago, etc. R. Co. 85 Ia. 167, 52 N. W. 119, the court cites the Beems case is support of the proposition that, in finding the value of the life of a man to his estate, evidence of his age, habits, health, means, business, and his married or single estate is admissible.