the existence of children and state as a [694] reason therefor that "observation and experience do not teach that one's income is likely to increase in the same ratio as the number of his children." It would have been scarcely less pertinent to have said that observation and experience do not show that, other things being equal, a married man lives longer than a single man. It is sufficient answer to either to say that no one contends otherwise, and the quip with which the competency of the testimony is there turned aside does not partake of the character of argument. If it be true (and it stands admitted in this court) that proof that deceased was a married man is of some probative force in estimating the probable value of his life to his estate because the responsibilities of wedlock tend to stimulate him to industry, prudence, and economy, shall the court shut its eyes to the equally patent fact that a child or children in the family, whether one or many, has an equal, if not greater, influence in the same direction? It may be said that the dependent members of a man's household may be so numerous as to exhaust his earnings and decrease rather than increase the likelihood of his accumulating estate. This is true, and in such case the defense is in no position to complain of the admission of the testimony. The writer has been unable to find that any court in any other jurisdiction has drawn any distinction between the admissibility of proof that the deceased in such cases was a married man and proof that he left children.

We have already called attention to the peculiar difficulties surrounding the presentation and trial of these cases and to the fact that, when all is said, the issue goes to the jury for what we have called a balancing of the probabilities and possibilities of the extent of that financial success, if any, which would have attended the life of the deceased, had his career not been prematurely arrested by the negligence complained of. We think that no impartial arbitrator, to whom that question might be submitted, would fail to inquire and ascertain, so far as practicable, not only what the deceased had already done or accomplished and the facts as to [695] his age, health, capacity, and earning powers, but also as to his exact situation in life and the surroundings and influences, if any, which, according to common knowledge and observation, tend to the development of industry and thrift. It is to be remembered that actions of this nature were unknown to the common law. The right thereto is a creature of statute, and investigation will show that the provisions made in the different states are of such varying character that decisions thereunder afford few precedents of much value except in the jurisdictions where they have been announced. As the action is not of common law origin and the injury to be compensated

for involves investigation into matters not before made the subject of judicial inquiry, it is not surprising that the rules of evidence therein should become involved in apparent confusion, though it is to be said that, when we consider the different statutes of the various states, the confusion is perhaps more apparent than real, a situation to which the compilers and annotators of decisions have not always given due attention. The construction and administration of our own statute is of course a matter for our own courts; and, notwithstanding there has been some uncertainty of expression with reference to the proper limitations upon the introduction of evidence, we think we are fairly committed to principles and rules recognizing the materiality and competency of testimony such as we have now under consideration. We also think them fully sustained by sound reasoning and the teachings of human experience. The assignment of error upon the admission of this testimony is therefore overruled.

It is next said that the court's instruction to the jury that the amount of plaintiff's damage, if any, was not to be increased by reason of the deceased having left children, and that evidence concerning the children had been admitted only as bearing upon the question of inducement or incentive to industry in the deceased, is contradictory and misleading. We find nothing in the [696] instruction of which appellant can complain. The attempt of the court to limit the effect of the testimony was favorable to the defense. It said to the jury in effect that the mere fact that the deceased had children who survived him was not in itself a ground for the recovery of damages, but that if the plaintiff was found otherwise entitled to recover it might be considered for what it was worth as bearing upon deceased's incentives to industry. If we are correct in holding the testi. mony admissible at all, then the limitation tended to restrict rather than to enlarge the plaintiff's right of recovery, and defendant has suffered no prejudice. Whether such restriction was called for under the record we need not decide.

Error is assigned upon the ruling of the court striking out testimony of a statement by the deceased that he could not obtain life insurance because of his health. We think the testimony should not have been stricken because it was a circumstance, though one of elight importance, bearing upon his condition of health, and consequently upon his expectancy of life and ability to labor; but these curcumstances and conditions were quite fully inquired into, and we think the exclusion of this particular item was not a prejudicial

error.

The same may be said of one or two other similar rulings. There was no error in admitting complaints made by the deceased of

pain and suffering soon after his injury. It is true the administrator was not entitled to recover for the pain and suffering sustained by the deceased, and the jury were so instructed, but the rule which admits the complaints of the injured person as bearing upon the nature, extent, and location of his injuries is quite elementary. Hamilton v. Mendota

Coal, etc. Co. 120 Ia. 149, 94 N. W. 282; 7 Ency. Evidence, 386.

The complaint that the damages allowed ($8,000) are excessive cannot be sustained. The deceased was still a young [697] man, with an expectancy of life of thirty-six years. He was a boiler maker earning from $56 to $108 per month; and, while as we have said he was probably not a man of robust health, he was engaged in labor at his trade and, so far as appears, was in no respect incapacitated to pursue the same, and no curcumstances are disclosed rendering it necessarily improbable that he would live out his expectancy maintaining the physical efficiency of the average man.

We find no prejudicial error in the record, and the judgment of the district court is Affirmed.

Evans, Gaynor, Withrow, and Ladd, J. J.,

concur.

PRESTON, J. (dissenting.)—I regret that I am unable to agree with my Associates in regard to the admissibility of the evidence as to the number of children and instruction No. eleven and one-half on that subject. I shall set out the record more fully than has been done in the majority opinion.

A.

In

Plaintiff, Mrs. Nicoll, formerly Mrs. MeNulty, was permitted to testify over objections as follows: "Q. Did he leave any family other than yourself? Did he have any children? The Court: It is not admitted for the purpose of affecting damages in any way, but it is done for some other purpose. Four. Q. What were their ages at the time of his death? A. The oldest was ten, the youngest was a little over a year old." this connection, the court gave the following instruction: "(Eleven and one-half) You are instructed that there can be no recovery in this case for pain and suffering endured by the deceased resulting from the injury reeeived by him, and you are also instructed that the remarriage of the widow of the deceased is not to be considered by you in diminishing the amount of damages sustained by said estate, if any you find. And on the other hand the amount of damages, if any you find, is not to be increased [698] by reason of the deceased having children that he left surviving him; evidence of his children and the number thereof being admitted by the court solely as bearing upon the question

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

It is urged by appellant that admitting the evidence, as to the children, was erroneous; that the latter part of the instruction did authorize the jury to enhance the damages by reason of deceased having left children; and that the last two sentences therein are in conflict with each other. It may seem that, even though this evidence was not admissible, the exception taken to its admission was canceled by the instruction of the court that the damages were not to be increased by reason of the fact that deceased left children surviving. It has been held that where the verdict is not excessive, and the court instructed the jury to disregard the evidence, the error in admitting it is not fatal. 13 Cyc. 197, and cases, some of which are to the contrary. But it is claimed by appellant that the verdict is excessive, and that the instruction did not cure the error because the latter part of it did authorize the jury to enhance the damages. The object in introducing this evidence was, no doubt, to inform the jury that deceased had infant children dependent upon him for support. It is impossible to determine how far the assessment of damages was controlled by this evidence as to plaintiff's family of small children. The reasonable inference is that it had some influence upon the verdict. The damages in such cases are more or less uncertain in any event, and the evidence should be limited to legitimate elements of damage. Appellant contends that the question as to the admissibility of such evidence has been settled in the case of Beems v. Chicago, etc. R. Co. 58 Ia. 150, 12 N. W. 222, and that it is not admissible for any purpose in a case of this character. Appellee says that case was a three to two decision; that it is not in harmony with prior holdings, has not been followed since, is unsound; and that it has been an open question in this state for thirty years. It appears [699] to me that the tendency of our former cases is to exclude such evidence. The question as to evidence in regard to children was not involved in the Stafford case, or the Wheelan case, and many of the other cases cited in the majority opin. ion. It is being now decided for the first time in this jurisdiction, or any other, so far as I am able to discover, that such evidence is competent, under such a statute as ours, where the question is as to damages to the estate.

As stated, some of the cases hold that the evidence is not competent, but that if the court instructs the jury that it must not be considered as affecting damages, and the damages are not excessive, there is no prejudice. Other cases hold that, if such evidence is admitted and the verdict is excessive, it may be cured by remittitur, because the only effect of

the evidence is to enhance the recovery. Chicago, etc. R. v. Batsel, 100 Ark. 526, 140 S. W. 726. Though this is denied in Jones, etc. Co. v. George, 227 Ili. 64, 81 N. E. 4, 10 Ann. Cas. 285, to which I shall again refer.

But the cases all hold that the evidence is incompetent. I am not prepared to say that a reversal should follow in every case where the evidence as to children is admitted. Cases might arise where the court instructed the jury squarely to not consider it as affecting damages and where the evidence is such that it could be fairly said that the verdict is not excessive and that there was no prejudice. But that is not the question being now determined. The question is: Is the evidence competent? The fact that jurors may learn about it on the street corners, or in the public prints, or incidentally in the courtroom is not, as I think, a reason for holding it competent.

As an original proposition, I should be inclined to say that the recovery should be the same whether a man is married or single. Conceding the rule to have been established by this court that evidence that the party is married is competent, I would not extend the rule to include evidence as to children. It occurs to me there are reasons for excluding evidence [700] as to children which would not apply to the question whether the party was married. There is but one wife, who is an adult, but there may be many children, some of tender age. But the question as to whether evidence that a person deceased, or injured, is married is not the question here, and I shall not discuss it. The only question now is whether it is competent to show the number and ages of children.

I concede that it is proper for a jury to be advised, in a general way, of the situation and condition in life of the party injured, as held in the cited New York case of Perry v. Lansing, and other cases, but it seems to me the argument in support of the proposition that the evidence as to the number and ages of children is admissible is on the theory that children would be a greater inducement to earn and save. If it is an inducement for greater effort and stricter economy, the effect would be to increase the value of the estate, and, if that is so, the estate would suffer greater damage; therefore the recovery should be larger. I understand the majority to say this is not the purpose, but the reasoning and cases in support of the proposition are, as I think, based upon the theory that it is for that purpose. For instance, it is said that under the Nebraska statute, authorizing a recovery for the injury to support of dependent relatives, such evidence is competent, and that the reasoning of that court in such a case is applicable here. That such evidence is admissible, "not as a direct ground for the jury's action, but as showing what the de

ceased was doing, and likely to do, to make his life pecuniarily valuable to plaintiff." If the fact of having children is likely to make his life pecuniarily valuable, it should enhance the damages; if less valuable then the damages should be decreased. It would be one way or the other, depending on the character of the children, whether they were a help or otherwise.

I do not say that the evidence is not competent under the Nebraska statute, where damages do not go to the estate, as in Iowa. What I am trying to show is the false position of [701] the majority when they say it is not admitted for the purpose of increasing or decreasing the damages, when it cannot have any other effect, and is not and cannot be admissible for any other purpose. It seems to be the theory under the Nebraska holding that the fact of having children would make the life more valuable, while in at least one Iowa case (Dufree v. Wabash R. Co. 155 Ia. 544, 136 N. W. 695) the thought seems to be that the life would be less valuable. This is so, or else I do not comprehend the ruling in that case. Here was the situation in that case, as stated in the majority opinion: "The plaintiff having shown the wages earned by the deceased, it was developed on cross-examination that he was saving none of his earnings and had no property. On re'direct examination plaintiff was permitted to show that deceased was supporting a wife and three children. The defendant assigned error upon this ruling and cited Beems v. Chicago, etc. R. Co. in support of its position. The authority of that precedent was not discussed by the court, for we held that the evidence was admissible, in any event, as an explanation of the fact that deceased was not making any savings." If he was unable to save anything because of the expense of raising his children, what other effect could it have but to decrease the value of his estate? It should be kept in mind that this is not a case under the Employers' Liability Act but is an action for damages to the estate of deceased. In State v. Rutledge, 135 Ia. 581, 113 N. W. 461, a criminal case, it was held such evidence was not proper, and in it the Beems case is referred to and approved. In State v. Wangler, 151 Ia. 555, 132 N. W. 22, a bastardy case, the ruling was the same, and the Beems case referred to, but it was held that in such a case there was no prejudice, on the theory, no doubt, that the form of the verdict in a bastardy case is guilty or not guilty, and the jury do not have to do with fixing the amount which shall be allowed for the support of the child. But these two cases do not quite reach the point now under consideration. The question first arose in Donaldson v. Mississippi, etc. R. Co. 18 Ia. 280, 87 Am. Dec. 391, but was not squarely

decided; [702] the court holding that, because the jury were, by the instructions, guarded against allowance of damages for improper causes, there was no prejudice. The court did say: "We would not be understood, however, as determining that evidence as to the num ber and ages of his children is strictly proper." In Lowe v. Chicago, etc. R. Co. 89 Ia. 420, 433, 56 N. W. 519, decided since the Beems case, it is stated that it was shown by the evidence, among other things, that deceased left a wife and three children, but the question now being considered was not raised in any manner.

Under statutes which provide that the damages for wrongful death inure to the benefit of the family, such evidence is admissible. Baltimore, etc. R. Co. v. Mackey, 157 U. S. 72, 15 S. Ct. 491, 39 U. S. (L. ed.) 624 (2d ed.) In that case the statute excludes the creditors of deceased from any interest in the recovery and declares not only that the judgment shall inure exclusively to the benefit of his family but that the damages shall be assessed with reference to the injury done to the widow and next of kin. This seems to be the distinction running through the cases that, if the damages inure to the benefit of the family, it may be shown what persons compose the family, but not so if the damages go to the estate, as in this case.

The question here is: What was the value of the life of the deceased to his estate? The number of his children can have no bearing on that question. The measure of the recovery and the elements to be considered are stated in Grace v. Minneapolis, etc. R. Co. 153 Ia. 418, 432, 133 N. W. 672, and Neal v. Sheffield Brick etc. Co. 151 Ia. 690, 695, 130 N. W. 398.

The thought in the last sentence of instruction eleven and one-half that evidence as to the children is to be considered on the question of inducement or incentive to habits of industry, etc., is on the theory, doubtless, that, as stated by the minority in the Beems case, it "would largely add to the value of his personal services to his own estate." The majority opinion in this case says the purpose is "to stimulate him to industry, prudence, and economy.' It would seem [703] that, if this be true, the only effect it could have would be to increase the value of his estate, and thus necessarily to increase the damages, so that the last two clauses in instruction eleven and one half are in conflict and cannot be reconciled.

Some of the cases exclude evidence as to children because its admission is likely to prejudice the jury. It was said by a majority of the court in the Beems case that observation and experience do not teach that one's income is likely to increase in the same ratio as the number of his children. It would seem that there are other reasons for exclud

ing such evidence. If it is thought that children would be an inducement to habits of industry, and thus increase the value of his estate, how long would the inducement continue? Would it continue during the entire expectancy of the person injured or deceased? Would there be other children born after the injury and after the trial? Would some of these die? What is their expectancy? What are their habits? Would their earnings, until they reach their majority, add to the estate, or would it cost more to raise them than they earn? Suppose a man has six minor children, who are dutiful, in good health, industrious, and saving; they would, when old enough, be a great help and aid to the parent in accumulating and saving money. But suppose the children are sickly, requiring medical expense, they are unable to work, or suppose they are lazy and spendthrifts, would they enhance or decrease the value of the estate? We will say that the parent is injured or killed. If proof as to the number of children is competent, then the man with the family of children who are not helpful obtains the same advantage by such proof as the man whose family is an aid to him, unless all these matters are gone into. Would defendant's attorney dare to cross-examine and show that the children are cripples or sickly? For the purpose of argument, I am assuming at this point that the sympathies of the jury would not be aroused, and that they would fairly consider such evidence for the only [704] purpose for which it could be considered, and that is to either enhance or decrease damages. If it be competent to show the number of children composing the family of the person injured or deceased, why would it not be competent to show that the parents or grandchildren of such person were members of his family, if that be the fact? These and other questions naturally arise. It seems to the writer that these matters are too remote, uncertain, speculative, and would involve the investigation of collateral matters. To hold that such evidence is admissible necessarily overrules the Beems case and overturns a precedent of thirty years' standing, is against the overwhelming weight of authority, and establishes a dangerous rule.

If the evidence is properly in the record, it would be legitimate to refer to it in argú. ment to the jury, and hereafter, in personal injury and like cases, we may expect it to be used to the best advantage, and in all probability we will be compelled to reverse cases because of it.

the jury being properly cautioned that she can recover only for the pecuniary damage resulting to herself from the death." The opinion is brief on this point. It cites two prior decisions of the Wisconsin court, one of which Lawson v. Chicago, etc. R. Co. 64 Wis. 447, 24 N. W. 618, 54 Am. Rep. 634, cites Donaldson v. Mississippi, etc. R. Co. 18 Ia. 280, 87 Am. Dec. 391, as authority; and Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910, in which the court says: "The court charged the jury, on the subject of damages, that the damages 'must be the money value only to her and her children which the life of the deceased was worth to her and them on the day of his death.' This was error. The fact that there are children left surviving, whose support will be thrown on the plaintiff, is proper to be shown in evidence and to be considered by [705] the jury; but the damages recoverable are those which the widow has suffered, not those which the children have suffered." From this it appears that there is a different statute in Wisconsin from ours by which the damages are for the benefit of the widow and not the estate.

Appellee also cites as being to the same effect as the Hamann case, 7 Enc. of Evidence, 439; but an examination of the text shows that this is the rule in states which by statute allow the right of action for the benefit of the next of kin of deceased. He also cites 8 Am. & Eng. Enc. of Law (2d ed.) 941. But at page 940 of the same volume the same distinction is made which I make. It is there stated that, where the action is brought by the widow for the death of her husband, the ground of the admissibility of such evidence is that by the death of the father the responsibility of supporting and rearing the children is cast upon the plaintiff, their mother, and it is proper to show the extent and character of this responsibility thus cast upon her. Also 13 Cyc. 358, and numerous cases there cited. The text here refers to the number and condition of persons dependent upon deceased. Some of the cases there cited are under statutes such as I have mentioned. In my opinion the rule announced in the Beems case as to evidence in regard to children of a deceased person is correct, and that it is sustained by the weight of authority. In some of the cases the party injured was deceased, in others he survived, but the rule is the same, for in one case he is suing for his own injuries, and in the other his representative is suing for damages to his estate. As sustaining the rule in the Beems case, see 13 Cyc. 196, and cases, also Pennsylvania Co. v. Roy, 102 U. S. 451, 26 U. S. (L. ed.) 141, 145 (2d ed.); Baltimore, etc. Ry. v. Camp, 81 Fed. 808, 26 C. C. A. 626, 54 U. S. App. 111; Louisville, etc. R. Co. v. Binion, 107 Ala.

652, 18 So. 78; Dayharsh v. Hannibal, etc. R. Co. 103 Mo. 577, 15 S. W. 555, 23 Am. St. Rep. 900; Jones, etc. Co. v. George, 227 Ill. 64, 81 N. E. 4, 10 Ann. Cas. 285; Vandalia Coal Co. v. Yemm, 175 Ind. 524, 92 N.E. 49, 94 N. E. 881; [706] Simpson v. Foundation Co. 201 N. Y. 479, 95 N. E. 10, Ann. Cas. 1912B 321; Carlile v. Bentley, 81 Neb. 715, 116 N. W. 772; Maynard v. Oregon R. Co. 46 Ore. 15, 78 Pac. 983, 68 L.R.A. 477; Ft. Worth Iron Works v. Stokes, 33 Tex. Civ. App. 218, 76 S. W. 231; St. Louis, etc. R. Co. v. Adams, 74 Ark. 326, 85 S. W. 768, 86 S. W. 287, 109 Am. St. Rep. 85; Louisville, etc. R. Co. v. Eakins, 103 Ky. 465, 45 S. W. 529, 46 S. W. 496, 47 S. W. 872; Chicago, etc. R. v. Batsel, 100 Ark. 526, 140 S.W. 726; Union Pac. R. Co. v. Hammerland, 70 Kan. 888, 79 Pac. 152; Rio Grande Southern R. Co. v. Campbell, 44 Colo. 1, 96 Pac. 986; Standard Oil Co. v. Tierney, 92 Ky. 367, 17 S. W. 1025, 14 L.R.A. 677, 36 Am. St. Rep. 595; Union Pac. R. v. McMican, 194 Fed. 393, 114 C. C. A. 311. These are not all the cases which might be cited. Many others are cited in some of these. It would unduly extend this dissent to quote at any length from these cases, but I wish to refer to a few of them.

In Pennsylvania Co. v. Roy, supra, a verdict for $10,000 was set aside and the cause reversed solely because of the admission of such evidence.

In the Kansas case (Union Pac. R. Co. v. Hammerland, supra), it was held that the evidence was not competent, and the court said the question is not debatable..

In the Kentucky case of Louisville, etc. R. Co. v. Eakins, supra, the court quotes from the opinion in the case of Chicago v. O'Brennan, 65 Ill. 163, as follows: "Was this evidence admissible? If it was, then it would have been competent to have gone further and shown all the circumstances of the family, such as that the mother was an invalid, that one of the daughters was blind, that one son had accidentally lost a leg, etc., if such had been the case, so as to present a most pitiable picture of a helpless family dependent upon appellee for support as a lecturer, for, as the evidence had no place in the case but as a stimulant to the jury, it would have been just as competent to make the stimu lant strong as weak. But was it competent at all? It is an elementary rule that evidence must be confined to the points at issue. There [707] was no point in issue to which this evidence had any relevancy. This sort of attempt to foist irrelevant matters upon the attention of the jury, with a view to creating a personal interest, is too often the secondary resort of a party on the witness stand." The Kentucky case states that this rule has received the approval of that court in a number of recently decided cases, citing them.