wrong.1 The question, What did the deceased usually earn? is a material and important inquiry in forming an estimate of the pecuniary loss sustained by the next of kin by reason of negligence 2

§1022. Where Deceased a Minor. In the case of the death of a minor child, the measure of damages is the value of his services from the time of the injury until the child arrives of age, less the expense of maintenance, etc., estimated in connection with the expectation of life,3 and less the expense of its support. In some cases the parents may recover damages for services he would have rendered after that time." There can be no recovery for loss of companionship or association, or injury to the parents' feelings. In an action for the death of a boy seven or eight years of age, if the family was poor, the fact that the boy would probably early have commenced to assist in supporting the family may be taken into consideration. The loss of service of a child, who was killed by

1 Staal v. R. R. Co., 57 Mich. 239. The court on appeal has refused to disturb verdicts as follows: Four thousand five hundred dollars for the negligent killing of a laborer sixty years old, of good health and industrious habits: Walter r. R. R. Co., 39 Iowa, 33. Three thousand dollars for the death of a husband, leaving an infant child: Ill. etc. R. R. Co. v. Hoffman, 67 Ill. 287. Two thousand five hundred dollars for the death of a workman, in fair health, who could earn $2.25 per day, and whose family was largely dependent on him for support: Annas r. Milwaukee and Northern R. R. Co., 67 Wis. 46. Eight thousand dollars, where plaintiff's husband was killed, she being an invalid with a daughter: Cook v. R. R. Co., 60 Cal. 604. Fifteen thousand dollars for the death of a young and robust skilled workman: East Line etc. R. R. Co. v. Smith, 65 Tex. 167. Two thousand dollars for the death of a married unskilled laborer, fifty-five years old, leaving a widow and seven children: Mulcairns v. Janesville, 67 Wis. 24.

287.

McIntyre v. R. R. Co., 37 N. Y.

3 Birmingham v. Dover, 2 Brewst. 69; Rockford etc. R. R. Co. v. Delaney, 82 Ill. 198; 25 Am. Rep. 308; Penn. etc. R. R. Co v. Bantom, 54 Pa. St. 495; Caldwell v. Brown, 53 Pa. St. 453; Quin v. Moore, 15 N. Y. 432; Chicago v. Hesing, 83 Ill. 205; 25 Am. Rep. 378; Chicago v. Scholten, 75 Ill. 469; Lehman v. Brooklyn, 29 Barb. 234; Barley v. R. R. Co., 4 Biss. 430; Ford v. Monroe, 20 Wend. 210; Durkee v. R. R. Co., 56 Cal. 388; 38 Am. Rep. 59.

St. Louis etc. R. R. Co. v. Freeman, 36 Ark. 41; Benton v. R. R. Co., 55 Iowa, 496.

5 Potter v. R. R. Co., 21 Wis. 372; 94 Am. Dec. 548; 22 Wis. 615; Durkee v. R. R. Co., 56 Cal. 388; 38 Am. Rep. 59.

Little Rock etc. R. R. Co. v, Barker, 33 Ark. 350; 34 Am. Rep. 44; Galveston v. Barbour, 62 Tex. 172; 50 Am. Rep. 519.

7 Barley v. R. R. Co., 4 Biss. 430.

negligence, and the expense of the sickness of the mother, caused by her grief, are proper items of damage.' Although the parents had given his time to the boy killed, they may recover damages for loss of support, etc." It cannot be ruled as matter of law that the brothers and sisters of the person killed (a minor) sustained no loss. The following verdicts have been sustained on appeal: Eight hundred dollars for the death of a child of four years; two thousand dollars for the death of a child between six and seven years; three thousand dollars for the death of a child eighteen months old; five thousand dollars for the killing of a child seven years old;' two thousand dollars for killing a boy eighteen months old. But a verdict of eighteen hundred dollars, where the child was five years of age, was held excessive." Where a father claims damages for the negligent killing of his son, a verdict of four thousand dollars cannot be sustained on evidence merely of the fact of relationship, there being no evidence of the condition, pecuniary or physical, of the father, or of his age. A verdict for ten thousand dollars was set aside, it appearing that the next of kin entitled to the benefit of the verdict was a mother in comfortable pecuniary circumstances, who had derived no profit from the earnings of her son, nor was likely to profit by his earnings had he lived." Four thousand five hundred dollars for loss of services caused by the death of a child five years old was held excessive.12

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1 Ford v. Munroe, 20 Wend. 210. 2 St. Joseph etc. R. R. Co. v. Wheeler, 35 Kan. 185.

3 Chicago v. Keefe, 114 Ill. 222; 55 Am. Rep. 860.

4 Chicago v. Major, 18 Ill. 349; 68 Am. Dec. 593; Chicago v. Hesing, 83 Ill. 207; 25 Am. Rep. 378.

5 Chicago etc. R. R. Co. v. Becker, 84 Ill. 483.

6 Louisville etc. R. R. Co. v. Connor, 9 Heisk. 20.

ILLUSTRATIONS.-A father claimed damages for the death of his son twelve years of age. The boy had been living at home, earning nothing, and being pecuniarily a burden to his parents; but it was said that in a year or so he might have gone to work in a neighboring factory, and have taken back money to his parents. Held, that the father was entitled to damages: Bramwell v. Lees, 29 L. T. 82, 266. The action was brought by a widow for the death of her son, aged fourteen. Her husband, a herd, had been killed by the same accident, for which she had recovered four hundred pounds in another action. The boy was being sent to school, but when at home used to work on the farm in his father's absence. He never earned any wages, but his capabilities were valued at sixpence a day. Held, that the probability (increased by the past filial conduct of the deceased, and enhanced by reason of the father's death) that he would have enabled his mother to earn more, or would have devoted part of his earnings to her support, was evidence to go to the jury upon the question of damages, and that a verdict could not have been directed for the defendants: Condon v. R. R. Co., I. R. 16 C. L. 415.

§ 1023. Evidence-In General. The wealth of the defendant is irrelevant,' and so is, ordinarily, the poverty of the plaintiff. But evidence as to the amount of property deceased has acquired, his habits of industry, his ability to make money, and his success in business, is admissible as a basis of damages; or that the plaintiff was in indigent circumstances and dependent upon her

1 Conant v. Griffin, 48 Ill. 410. Illinois etc. R. R. Co. v. Baches, 55 Ill. 379; Chicago etc. R. R. Co. v. Bayfield, 37 Mich. 205; the court saying: "The damages recoverable in a case of this nature are by the statute to be assessed with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person': Comp. Laws, sec. 2351. They have no regard to the needs of the persons designated, or to any moral obligation which may have rested upon the deceased to supply their wants..... What the family would lose by the death would be what it was accustomed to receive, or had reasonable expectation of receiving, in his lifetime and to show that the family were poor has no tendency toward

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showing whether this was or was likely to be large or small. . . . . There are, it is true, some cases in which, perhaps, such evidence must be received, because it tends to establish a moral obligation to demand assistance in the future from one at the time incapable of giving it; as where the person killed was a very young child, and at present contributing nothing in aid of any one: Ewen v. R. R. Co., 38 Wis. 613; Barley v. R. R. Co., 4 Biss. 430; Chicago v. Powers, 42 Ill. 169. But it is a sort of evidence that when neces sarily received should be used with caution": Chicago etc. R. R. Co. v. Henry, 7 Ill. App. 322; Chicago v. McCulloch, 10 Ill. App. 459.

Shaber v. R. R. Co., 28 Minn. 103.

son.

1

3

Evidence of the number in the deceased's family is inadmissible to show the value of his life to his estate.2 A woman may show how many children are dependent on her; that she had no means of support except what her husband furnished her; that the deceased was a kind and good husband and father. It is not competent on the question of damages to show that deceased was in the line of promotion, and would have received greater wages. The negotiations of the plaintiff with the defendant, with reference to the settlement of the claim for damages, are not admissible for the purpose of showing harsh and oppressive conduct of the defendant in resisting the claim, his liability to pay some damages not having been denied."

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§ 1024. In Mitigation. As evidence as to the business, education, and habits of sobriety and economy of the deceased is admissible, so also the character of the deceased as a drunken, worthless man, making no provision for his family, but being a burden to them for his support, is proper in mitigation of damages. In a suit by a widow for the homicide of her husband, the record of the acquittal of the defendant under an indictment for the murder of the husband is not evidence for the defendant in a civil suit.10 The receipt of money, by those for whose benefit the action was brought, on a policy of insurance on the life of the deceased, cannot be shown to reduce the amount of recovery;" or that the deceased was insured.12 The probability of the widow's subsequent mar1 Int. etc. R. R. Co. v. Kindred, 57 Chicago etc. R. R. Co. v. Clark, 108 Tex. 491.

2 Beems v. R. R. Co., 58 Iowa, 150.

3 Mulcairns v. Janesville, 67 Wis. 25; Beard v. Skeldon, 13 Ill. App. 54. Annas v. R. R. Co., 67 Wis. 46; 58 Am. Rep. 848.

Cook v. R. R. Co., 60 Cal. 604. Brown v. R. R. Co., 64 Iowa, 652. 7 Green v. R. R. Co., 32 Barb. 24. 8 Taylor v. R. R. Co., 45 Cal. 323;

Ill. 113.

Nashville etc. R. R. Co. v. Prince, 2 Heisk. 580.

10 Cottingham v. Weeks, 54 Ga. 275. 11 Sherlock v. Alling, 44 Ind. 184; Althorf v. Wolfe, 22 N. Y. 355; Carroll v. R. R. Co., 88 Mo. 239; 57 Am. Rep. 382.

12 Kellogg v. R. R. Co., 79 N. Y. 72; North Pennsylvania R. R. Co. v. Kirk, 90 Pa. St. 15.

riage is irrelevant.' It is admissible for a defendant to show that a plaintiff was not entitled to the services of his minor child, whose death is in question. A master cannot bring an action for the negligent killing of his own son, who was merely his servant, for the benefit lost must arise through relationship, and not through contract; and if no loss was due to the former as such, none due to the latter could be taken into account.3

§ 1025. Pleading. Where the statute gives the remedy in favor of certain specified persons, the petition should name the person for whose benefit the suit is brought, and state the relationship. Where the recovery is to be distributed like personal estate, it will be presumed, without any allegation, that kindred exist." Where the statute gives a right of action to the parent of one who was a minor and unmarried, the petition is defective in not stating that he was unmarried. In an action by an administrator, the complaint need not allege that the intestate left next of kin. In stating the cause of action, the statute need not be referred to. The particular acts of negligence causing the death of the party injured need not be set out; and it is not necessary to allege that pecuniary damage has been sustained." But under a statute giving

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1 Baltimore and Ohio R. R. Co. v. State, 33 Md. 542; Georgia etc. R. R. Co. v. Garr, 57 Ga. 277; 24 Am. Rep. 492. And see Seaman v. Farmers' Loan Co., 15 Wis. 578.

2 Quincy Coal Co. v. Hood, 77 Ill. 68.

3 Sykes v. Northeastern R. R. Co., 44 L. J. Com. P. 191.

Quincy Coal Co. v. Hood, 77 Ill. 68; Indiana etc. R. R. Co. v. Keeley, 23 Ind. 133; Safford v. Drew, 3 Duer, 627. Contra, Keller v. R. R. Co., 24 How. Pr. 172. In Indiana and other states an averment that there are persons entitled is sufficient without naming them: Jeffersonville etc. R. R. Co. v. Hendricks, 41 Ind. 49; Chicago etc. R. R. Co. v. Morris, 26 Ill. 400;

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Woodward v. R. R. Co., 23 Wis. 400;
Conant v. Griffin, 48 Ill. 410.

Alabama etc. R. R. Co. v. Waller, 48 Ala. 459.

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597.

Dulaney v. R. R. Co., 21 Mo. App.

7 Warner v. R. R. Co., 94 N. C. 250.

8 White v. Maxcy, 64 Mo. 552.

Dolan v. Moberly, 17 Mo. App. 436; Indianapolis etc. R. R. Co. v. Keeley's Adm'r, 23 Ind. 133; Oldfield v. R. R. Co., 14 N. Y. 310; Alabama etc. R. R. Co. v. Waller, 48 Ala. 459; State v. R. R. Co., 52 N. H. 528; but see Lexington v. Lewis's Adm'x, 10 Bush, 677.

13 Chapman v. Rothwell, 27 L. J. Q. B. 315; 4 Jur., N. S., 1180.