Baltimore & Ohio R. R. v. State ex rel. Kelly
1866 Md. LEXIS 17
Md.
1866
Check Treatment
Cochran, J.,

delivered the opinion of this Court.

This suit was brought by the appellee, under the Act of 1852, ch. 299, to recover damages resulting from the death of William Kelly, which it is alleged was caused by negligence on the part of the appellant. The exception, on which the case was brought up, contains evidence of the age, habits, health and employment of the deceased, at the time lie lost his life, and also of the members of his family; that he supported them by his labor, and that after his death his widow supported herself and child by her own exertions.

All the prayers of the appellant were granted excepting the 5th ; and by the 7th, the last of the series, the jury were instructed that in assessing the damages they should confine themselves to such compensation to the surviving members of Kelly’s family, as would supply to them the same results as would have been afforded by his labor during the probable period he would otherwise have lived and earned a livelihood ; but that they might take into consideration his age, health and occupation, and the comfort and support afforded his family at the time of his being killed.

*280The proposition submitted by the 5th prayer, to the rejection of which this exception was taken, was that, in the absence of proof as to the wages or earnings of Kelly, no standard was shown by which the jury could find the amount of damages sustained, and that their verdict should, therefore, have been for nominal damages only.

Vindictive or punitive damages were not claimed, and, indeed, as we have recently held, punitive damages are not recoverable in such a case as this, under the Act of 1852. But looking to the concession made in the 1th prayer, that the jury might, in assessing the damages, take into consideration the age, health and occupation of the deceased, as well as the comfort and support afforded by him to his family, it -is a little difficult to understand why the appellant should be allowed to insist on the doctrine propounded by the rejected prayer. Without, however, disposing of the question on that ground, let us inquire whether this prayer is otherwise free from objection.

It is admitted that there was no evidence of the specific-wages paid to Kelly at the time of his death, although there was proof of the character of his occupation, as well as of the fact that he was in the employ of the appellant. The prayer goes on the theory, that the rate of wages, paid at the time of the death, was the true and exclusive standard of the damages sustained, and, in the absence of proof on that point, that nominal damages only could be recovered. So far as we have been able, to learn, this proposition is not only unsupported by any direct authority, but too strict in its character to admit of general application. The adoption of it in this case, would have withdrawn from the consideration of the jury a mass of evidence that tended to show the nature and extent of the damages actually sustained. Suppose, for instance, that Kelly was out of employment at the time he was killed, or that he was then *281pursuing some occupation affording a livelihood for himself and family, yet of a character not to show the .specific amount derived from it, could it be pretended, that being out of employment, or that the want of proof of the amount derived from the occupation pursued, would have the effect of limiting the right of recovery to nominal damages only ? We do not understand that to be the rule. In Franklin vs. South Eastern Railway Co., 3 Hurls. & Nor., 211, the action was brought to recover damages under the Act from which our Act of 1852 was derived, and Pollock, C. B., in delivering the opinion of the Court, said that “it was clear that damage must be shown, for the jury are to give such damages as they may think proportioned to the injury. It has been held, that these damages are not to be given as a solatium, but are to be given in reference to a pecuniary loss. It is also clear, that the damages are not to be given merely in reference to the loss of a legal right, for they are to be distributed among relations only, and not to all individuals sustaining such a loss. If then the damages are not to be calculated on either of these principles, nothing remains, except that they should be calculated in reference to a reasonable expectation of a pecuniary benefit, as of right or otherwise, from the continuance of the life.” In Dalton against the same defendant, 93 Eng. C. L. Rep., 296, it was said “that the reasonable expectation of pecuniary advantage by the relation remaining alive, may be taken into account by the jury, and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned.” In Duckworth vs. Johnson, 4 Hurls. & Nor., 652, the action was brought by a father for damages resulting from the killing of his son, and there the question was whether the plaintiff had sustained damage that entitled him to recover. There was proof that the son had previously earned four shillings a week, but that he was out *282of employment at the time of his death. Pollock, O. B., again said, “ It is true no distinct evidence was given of the value of the hoy’s services, and the cost of hoarding and clothing him ; hut as to that, the juiy were better able to judge than we are. It having been decided that a reasonable prospect of pecuniary benefit may he taken into consideration, it is impossible for us to say, that the jury were not warranted in finding the verdict which they have done.” The general doctrine of these cases is applicable here, and they clearly show that there was no error in rejecting this prayer. They also support the proposition of the 7th prayer as the true law of the case.

(Decided March 22nd 1866.)

Judgment affirmed.