Agricultural & Mechanical Ass'n v. State ex rel. Carty, 71 Md. 86

Agricultural & Mechanical Ass'n v. State ex rel. Carty

71 Md. 86 | Md. | 1889

Miller, J.,

delivered the opinion of the Court.

This suit was brought under the Negligence law, by a father to recover damages for the death of his minor son, .caused, as it is alleged, by the negligence of the defendant. Many actions have been brought under this statute, and they seem to be daily increasing in number. The *99legal principles which govern them are familiar, but there is always more or less difficulty in the application of these principles to particular cases. Here the boy killed was nineteen years and seven months old, and he met liis death under peculiar circumstances.

We gather from the record, that in October, 1888, the defendant hold a fair in its grounds at Hagerstown. Among the exhibitions offered for the amusement of visitors were balloon ascensions and trapeze performances in the air. The preparations for these were in a circular enclosure in a part of the fair grounds, and several large poles were planted by which the balloons could be stayed and held while they were in process of inflation and made ready to be sent up. One of these poles, which it is alleged was insecurely fixed in the ground, fell upon the hoy and killed him. He had a ticket as keeper of stock, which admitted him to the fair grounds free of charge, but with all the privileges of an ordinary visitor.

There was the usual conflict of testimony as to negligence on the part of the defendant, and as to contributory negligence on the part of the deceased. But on this part of the case little need be said. We find no error warranting a reversal, in the instructions on these subjects given to the jury by the learned -Judge before whom the case was tried, in-granting the plaintiff’s third and fifth prayers, and the defendant’s third, fourth, eighth, ninth and tenth prayers. The defendant’s fifth, sixth, and seventh prayers on the same subject were properly rejected, because those granted fully covered the law as to this branch of the ease. The multiplication of prayers substantially the same on subjects about which the law has been thoroughly well settled is a practice much to he deprecated.

But the question most earnestly argued arises upon the rulings as to the measure of damages. The Judge was clearly right in instructing the jury that in estimat*100ing the damages they were confined to the pecuniary damages sustained by the plaintiff. The authorities all agree that in suits under Lord Campbell’s Act, and similar statutes in this country, pecuniary damages only can be recovered. Nothing can be given the father as a solatium for the bereavement suffered by the loss of his child. The statute does not deal with the priceless Amine at which a father holds the life of his child, and only professes to compensate him for the pecuniary loss he may sustain by his death. But the Court told the jury, that in estimating such damages they could alloAv the father what they may believe, from all the evidence in the case, will be an adequate compensation “for the loss of his son’s life,” and refused to instruct them that they could only giAre such as they may believe from the evidence will be an adequate eonqpensation for the loss of his son’s services “until he should arrive at the age of twenty-one years.” So the question is fairly raised Avhether in a suit by a father under this statute to recover damages for the death of a minor child, the jury should be alloAved to take into account any expectation of pecuniary benefit to the plaintiff from the continuance of the child’s life beyond minority.

There is conflict of authority on this subject in other States. Pennsylvania Railroad Company vs. Lebe, 33 Penn. State Rep., 330; Caldwell vs. Brown, 53 Pa., 453; Birkett vs. Knickerbocker Ice Co., 110 N. Y., 504. But so far as this State is concerned Ave think the question has been settled. It first arose in the case of State, use of Coughlan vs. Balto. & Ohio R. R. Co., 24 Md., 84 ; which Avas decided in 1865, and is among the first, if not the first case, in which this statute was construed, it having been passed in 1852. In that case the boy killed wasbetAveen ten and twelve years of age. He had no father liAÚng, and the suit was brought by his AvidoAved mother, Avho had a large family, and kept a small grocery store. He *101was her eldest child, a smart, likely lad, who attended the store when his mother was absent, and his services were worth to her from $5 to $6 per month at the time the accident occurred. The Court below (MabttiX, -7.) instructed the jury on the question of damages, that they could only give the mother such sum as they “may believe from all the evidence in the case will be an adequate compensation for the loss of her son’s services from the time of his death to the period when, if he had lived, he would have attained the age of twenty-one years.” This instruction was vigorously assailed by able counsel, in argument, but this Court affirmed it, and said : “ To submit to a jury the value of a life without limit as to years, would have been to leave them to speculate upon its duration without any basis of calculation. The law entitles the mother to the services of her child during minority only; beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture too vague to enter into an estimate of damages merely compensatory. According to the appellant’s theory, the mother and son are supposed to live on together to an indefinite age ; the one craving sympathy and support, the other rendering reverence, obedience, and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate, but the law lias no standard by which to measure their loss.” It has been suggested that by alluding to the fact that the mother was entitled by law to the services of her child during minority only, the Court intended to say that all actions under this statute must be founded on legal liability alone. But we do not so understand the Court’s judgment. What the Court was enforcing and deciding was that juries ought not to be allowed in such cases to assess damages upon vague conjecture or speculation. The danger of verdicts founded on mere guess work is alluded to in a previous part of the opinion, where it is *102said that “ generally speaking, the influence of the Court in this class of cases should be exerted to restrain those excesses into which juries are apt to run.” The legal right of the mother to the services of her minor son is referred to as furnishing a safe basis from which the jury may reasonably infer that she suffered a pecuniary loss by his death, and as affording her a reasonable expectation of pecuniary benefit from the continuance of his life during .minority. But what a minor child may be able or willing to do for his father or mother after lie becomes of age, when he has the right to leave the parental roof and set up for himself in life, and before his willingness and ability have been tested by experience, is, as we understand the Court to say, a matter of conjecture, too vague' to enter into an estimate of damages in such a case.

Such is the meaning and effect of this decision. It is a leading one in our State and has. been repeatedly followed. In Cumb. &Penn. R. R. Co. vs. State, use of Moran, 44 Md., 283, the boy killed was old enough to be a fireman on a locomotive engine, and an instruction containing the same restriction met the approval of this Court. In Balto. & Potomac R. R. Co. vs. State, use of Stansbury, 54 Md., 648, the boy was twelve years old, and a like instruction was granted. So in Albert vs. State, use of Ryan, 66 Md., 325, where a minor son sued for the death of his father, his right to prospective damages was limited to his attaining his majority. In fact Coughlan’s Case has in this State been universally recognized as having settled the law on this subject.

Nor has it been overruled or shaken by anything said or decided in Balto. & Ohio R. R. Co. vs. State, use of Hauer, et al., 60 Md., 449. On the contrary, it is there cited with approval and carefully distinguished from the case then under consideration. Our statute, unlike those of some of the States which give the action for the benefit of the next of kin generally, closely follows Lord *103Campbell’s Act and allows suits only for the benefit “of the wife, husband, parent and child” of the person killed. And in Hauer’s Case, the Court, following the English decisions construing’ their statute, decided that “legal liability alone is not the test of the injury in respect of which damages may be recovered under the statute; but that the reasonable expectation of pecuniary advantage by the relative remaining alive may be taken into account by the jury, and damages given in respect of that expectation if it he disappointed, and the probable pecuniary loss thereby sustained. ” In that case a father was killed who had two adult unmarried daughters who lived with him as part of his family, were dependent upon him for support by reason of their inability to support themselves, and the father had supported and was supporting them at the time of his death. , In view of these facts, the Court considered it a case falling within the rule of interpretation above stated, and allowed the jury to award damages to these adult as well as to the minor children. Following in the same line is the case of Balto. &. Ohio R. R. Co. vs. State, use of Mahone, 63 Md., 135. The person killed was a mother who had made her permanent home with a married daughter, to whom she rendered services by attending to housework and looking after the children while the daughter was away at work, and thus gave her considerable assistance, which she had rendered and was rendering when she was killed. The Court allowed the jury to consider the pecuniary value of these services to. the daughter, and to award her damages for the loss of them. In each of the English decisions cited in both these cases the adult son who was killed had given and was giving assistance of a definite pecuniary amount to his parents, and this fact was relied on by tlie Court as the evidence which showed that the father had a reasonable expectation of pecuniary benefit from the continuance of his son’s life. Dalton *104vs. South-Eastern Railway Co., 93 Eng. C. L. Rep., 296 ; Franklin vs. South-Eastern Railway Co., 3 Hurls. & Norm., 211. Of like character and to the same effect is Penn. Railroad Co. vs. Adams, 55 Penn., 499, and many other similar cases might be cited. In these cases the son after attaining age had manifested his Avilliugness to assist his parents by actually doing so, and when that fact is proved AAre can understand hoAAr the latter may reasonably expect further assistance if the son lives. But whether a minor son will do so after he comes of age is, as it seems to us, a matter of Alague conjecture, Avhich can furnish no reasonable foundation for a verdict.

In the present case the father testified that he had emancipated his son íavo years before he was killed; that he was working for himself and had voluntarily given each year to Avitness since his emancipation $75 or $80 of his wages; that he Avas a farm hand and earned from $110 to $120 a year, and Avas living Avith Avitness, except when at labor. But the only effect of this emancipation as it is called, Avas to protect, so long as it continued, the employer in paying his wages to the minor himself. The father could revoke the privilege at any time he chose, and collect and receive his entire Avages.

Again, in answer to the direct question, “Did you have any reasonable expectation that he Avould do this” (that' is give you $75 or $80 a year) “after he became of age?)' The father testified that “the deceased had said that after he got of age he would help to fix up the property, and that he never said any thing about getting married',” and the Court, against the objection of the defendant, allowed” this testimony to go to the jury. But a vague declaration or promise- like this, made by a minor, has no probative force whatever, and, in our opinion, this evidence is altogether too slight and insufficient to enable a jury to find from it a ground for the reasonable expectation .which the laAv requires. Nor do we find any evidence in *105this record which can have the effect of taking this case out of the rule laid down hy our predecessors in Coughlan’s Case. That case was, in our judgment, well decided.

(Decided 11th June, 1889.)

We have considered the case very carefully, and it follows from what we have said that, while there is no error justifying a reversal in the other rulings of the Court, there is error in the modification made hy the Courtffo the defendant's eleventh prayer, in rejecting its twelfth prayer, in granting the plaintiff's first and fourth prayers, and in the ruling relating to the admissibility of evidence contained in the second exception, and for these errors the judgment must he reversed, and a new trial awarded.

Judgment reversed, and, new trial award,cd.