and appreciated in a pecuniary sense, whether she was bound to render any assistance in a legal point of view or not."

In Illinois, where the jury are directed by statute to give such damages "as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death," it is held that the jury should calculate the damages with reference to a reasonable expectation of benefit as of right or otherwise (i. e., of grace or favor) from the continuance of the life. (*) The rule as to the proper measure of damages in this class of cases is nowhere better stated than by Sharswood, J., in Pennsylvania R.R. Co. v. Butler, (') where the learned judge said:

"After an attentive examination and review of all the cases which have heretofore been decided, we are of opinion that the proper measure of damages is the pecuniary loss suffered by the parties entitled to the sum to be recovered—in this instance the children of the decedent-without any solatium for distress of mind, and that loss is what the deceased would have probably earned by his intellectual or bodily labor in his business or profession during the residue of his lifetime, and which would have gone for the benefit of his children, taking into consideration his age, ability, and disposition to labor, and his habits of living and expenditure."()

In estimating the prospective pecuniary loss through loss of expected accumulations of the deceased, no account can be taken of income from investments already made.(4) No special damage to the next of kin need

(*) Chicago v. Keefe, 114 Ill. 222.

(†) 57 Pa. 335, 358.

(c) To the same effect, Taylor v. West. P. R.R. Co., 45 Cal. 323; Burton v. Wilmington & W. R.R. Co., 82 N. C. 504; Catawissa R.R. Co. v. Armstrong, 52 Pa. 282; Mansfield Coal Co. v. McEnery, 91 Pa. 185; Castello v. Landwehr, 28 Wis. 522.

(1) Demarest v. Little, 47 N. J. L. 28.

§ 575.

SERVICES OF A CHILD.

209

be pleaded, as the statute is held to contemplate some damage. (*)

§ 575. Services of a child.-A parent may recover the value of the services of a minor child during the minority.() But it should be made to appear to the jury that there is at least a reasonable expectation that the services of the child will be of pecuniary value to the plaintiff;() and the complaint should allege that the father has suffered damage by the loss of service, or has been put to expense.(4) Since the jury must be satisfied by proof of the probability of actual loss resulting to the plaintiff from the death of the minor, the condition of the parents, the occupation of the father, etc., are admissible in evidence in this class of cases, when not in others under the statute, to enable the jury to determine the actual loss which will, in all probability, result from the death of the child. () The expense of providing for the child, had he lived, should be estimated and deducted from the estimated earnings of the child. (') Van Dyke, J., in Telfer v. Northern R. R. Co.,() said:

(*) Chicago v. Hesing, 83 Ill. 204; Stafford v. Rubens, 115 Ill. 196; Barnum v. Chicago, M. & St. P. Ry. Co., 30 Minn. 461; Johnson v. St. Paul & D. R.R. Co., 31 Minn. 283.

(5) Duckworth v. Johnson, 4 H. & N. 653; Condon v. Great Southern R.R. Co., 16 Ir. Com. L. 415; Little Rock & F. S. Ry. Co. v. Barker, 33 Ark. 350; Cleary v. City R.R. Co., 76 Cal. 240; Illinois C. R.R. Co. v. Slater, 129 Ill. 1. 91; Agricultural & M. Assoc. v. State, 71 Md. 86; Robel v. Chicago, M. & St. P. Ry. Co., 35 Minn. 84; Oldfield v. New York & H. R. R. Co., 14 N. Y. 310; O'Mara v. Hudson R. R.R. Co., 38 N. Y. 445; Ihl v. 42d St. R.R. Co., 47 N. Y. 317; Gill v. Rochester & P. R.R. Co., 37 Hun 107; Pennsylvania R.R. Co. v. Bantom, 54 Pa. 495; Ewen v. Chicago & N. W. Ry. Co., 38 Wis. 613.

() Atchison, T. & S. F. R.R. Co. v. Brown, 26 Kas. 443; Potter v. Chi

cago & N. W. Ry. Co., 21 Wis. 372.

(4) Edgar v. Castello, 14 S. C. 20.

(*) Barley v. Chicago & A. R.R. Co., 4 Biss. 430: Chicago v. Powers, 42

Ill. 169; Ewen v. Chicago & N. W. Ry. Co., 38 Wis. 613.

(St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41.

(5) 30 N. J. L. 188, 209.

VOL. II.-14

"The action is the creation of the statute, and it is needless to say that it must conform strictly to it. It is liable to great abuse, and the court should see that every verdict which is rendered contrary to it should be set aside. It is simply an action to recover, in dollars and cents, a compensation for the loss and damages which have actually been sustained. As the father of his children, the plaintiff was entitled to their services until they should arrive at the age of twenty-one years; and what those services might reasonably have been expected to be worth, he was entitled to recover, and nothing more, unless it be expenses growing out of the injuries, subject to the burdens and encumbrances which that relationship imposed upon him." (")

The cases of Ihl v. 42d St. R.R. Co ; (†) Oldfield v. New York & H. R.R. Co.,() and O'Mara v. Hudson R. R.R. Co.,() which are sometimes quoted as authorities for the position that the statute does not limit the recovery to the actual pecuniary loss proved on the trial, can only be regarded as correctly decided if the word actual is used as synonymous with the word present; and this would seem to be the case from the language used by Wright, J., in Oldfield v. The N. Y. & H. R.R. Co. Yet in Gorham v. New York C. & H. R. R.R. Co., () the court said:

"It was held in an action to recover damages for death of a child, three years old, under provision of ch. 450, L. 1847, as amended by ch. 256, L. 1849, that absence of proof of special pecuniary damage resulting from death of the child will not justify the court in nonsuiting the plaintiff or in directing the jury to find only nominal damages."

§ 576. Services after majority.—The weight of authority is that the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of

(a) Acc. Benton v. Chicago, R. I. & P. Ry. Co., 55 Ia. 496.

(†) 47 N. Y. 317.

(4) 38 N. Y. 445.

(c) 14 N. Y. 310.
(*) 23 Hun 449, 451.

§ 576.

SERVICES AFTER MAJORITY.

211

the life beyond the minority.(") Thus Earl, J., said in Birkett v. Knickerbocker Ice Co :(3)

"The jury were not bound, in estimating the compensation to be made for the death of the child, to confine their considerations to her minority. It is true that the plaintiff, as father, could command her services only during her minority. But in certain circumstances she might, after her majority, owe him the duty of support, which could, by legal proceedings, be enforced; and after that event she might, in many ways, be of great pecuniary benefit to him. In estimating the pecuniary value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune. There is no rule but their own good sense for their guidance, and they were not in this case bound to assume that no pecuniary benefits would come to the next of kin from this child after her majority."

In some jurisdictions, however, nothing can be recovered on account of loss of services after majority where the child was a minor when he died. () "The chances of survivorship, his ability and willingness to support her, are matters too vague to enter into an estimate of damages merely merely compensatory."(*)

In

(*) Fordyce v. McCants, 51 Ark. 509; Munro v. Pacific C. D. & R. Co., 84 Cal. 515; St. Joseph & W. R.R. Co. v. Wheeler, 35 Kas. 185; Scheffler v. Minneapolis & St. L. Ry. Co., 32 Minn. 518; Houston & T. C. Ry. Co. v. Cowser, 57 Tex. 293; Potter v. Chicago & N. W. R.R. Co., 21 Wis. 372. And so where the statute provides that the action shall be in favor of "the estate of the deceased," it is held that damages are not limited to the minority of the child. Pennsylvania R.R. Co. v. Lilly, 73 Ind. 252; Walters v. Chicago, R. I. & P. R.R. Co., 36 Ia. 458.

() 110 N. Y. 504, 508.

(*) State v. Baltimore & O. R.R. Co., 24 Md. 84; Cooper v. Lake Shore & M. S. Ry. Co., 66 Mich. 261; Telfer v. Northern R.R. Co., 30 N. J. L. 188; Pennsylvania R.R. Co. v. Kelly, 31 Pa. 372; Pennsylvania R.R. Co. v. Zebe, 33 Pa. 318; Caldwell v. Brown, 53 Pa. 453; Lehigh Iron Co. v. Rupp, 100 Pa. 95.

(4) State v. Baltimore & O. R.R. Co., 24 Md. 84, 107.

Cooper v. Lake Shore & M. S. Ry. Co.(") the court said:

"Here was a broad field of chance and probabilities laid open before the jury through which they could roam without limit. They were permitted to speculate upon the future, and consider the probabilities or the possibilities of its unknown and unknowable contingencies; to consider and guess at what might occur had the daughter not been killed, and had lived to an age measured by the probable duration of the life of a person 11 years of age. They were given the data of a healthy girl of 11 years of age, born of poor parents, living with and being cared for by her grandmother; and from this they were required to solve the mighty problem of a life whose future was unknown, and from its unfathomable depths to figure out the chances of pecuniary benefits the parents of that child would have received had she lived past the age of majority."

In case, however, of the killing of an adult child who is at the time actually rendering services, recovery may be had even in these jurisdictions. (b) The fact that the father of a deceased minor prior to the accident had relinquished to him the right to his time and services is not a bar to the action,() but may be taken into account in reduction. (4) It seems to be everywhere held that a father may recover for loss of the advice of his adult son in pecuniary matters, if the probability of such loss is shown.() In Houston & T. C. Ry. Co. v. Cowser, (') it is suggested that the best measure of damages would, perhaps, be such a sum as would produce an annuity equal to the value of the

(*) 66 Mich. 261, 270, per Champlin, J.

() Agricultural & M. Assoc. v. State, 71 Md. 86.

(c) Agricultural & M. Assoc. v. State, 71 Md. 86.

(d) St. Joseph & W. R.R. Co. v. Wheeler, 35 Kas. 185.

(*) North Pennsylvania R.R. Co. v. Kirk, 90 Pa. 15. So of a minor son, upon sufficient proof; Gill v. Rochester & P. R.R. Co., 37 Hun 107.

(57 Tex. 293.