156 Ill. 603 | Ill. | 1895
delivered the opinion of the court:
Much of the argument of counsel in this case is directed to questions of fact, which it is not claimed are open to review in this court. It is, however, insisted by counsel for appellant, that the judgment should be reversed because the damages are “unreasonably and irrationally excessive,” and in this connection it is insisted that the trial court erred in not instructing the jury to find no more than nominal damages.
Whether the damages assessed are excessive or not involves questions of fact, upon which the judgment of the Appellate Court is final. (North Chicago Street Railroad Co. v. Elbridge, 151 Ill. 542; Chicago and Grand Trunk Railway Co. v. Gaeinowski, 155 id. 189.) Whether or not the court erred in refusing the instruction mentioned is a question of law for review here. This instruction reads:
“16. The jury are instructed that the burden of proof lies upon the plaintiff in this case to show the pecuniary loss, if any, suffered by the next of kin of William Casparini, and if the jury believe, from the evidence, that all or any of such next of - kin had not been receiving from him pecuniary assistance, and that there is no evidence showing that such next of kin, or any of them, are in a situation to require such pecuniary assistance, then it is immaterial how near the degree of relationship may be, as the jury, in such case, should only allow nominal damages, if they believe, from the evidence, that there has been no pecuniary injury.”
The argument is, that as there was no evidence before the jury to prove any actual pecuniary loss to the next of kin, the mother or either of the two surviving brothers, proof of the relationship only being made, under the law in this State nominal damages, only, can be recovered. Counsel quote the following from City of Chicago v. Scholten, 75 Ill. 471, as the rule in this State: “Where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him, proof of such relationship would warrant a recovery of nominal damages, only; but where the deceased is a minor, and leaves a father, entitled to his services, the law presumes there has been a pecuniary loss, for which compensation, under the statute, may be given,”—citing Rockford, Rock Island and St. Louis Railroad Co. v. Delaney, 82 Ill. 198, Stafford v. Rubens, 115 id. 196, and City of Chicago v. Hesing, 83 id. 204; and counsel then say, that as the deceased left no father, no recovéry of substantial damages could be had without evidence of pecuniary loss; that the mother is not entitled to the services of her minor child, and therefore pecuniary loss cannot be presumed, but must be proved. We do not deem it necessary to review the authorities on this question. We are satisfied that the rule, founded upon natural justice and supported by the weight of modern authority, is, that upon the death of the father the mother becomes the head of the family, and is entitled to the services and earnings of her minor children. Buck v. Conlogue, 49 Ill. 391; Dufield v. Cross, 12 id. 397; Parmelee v. Smith, 21 id. 620; Day v. Everett, 7 Mass. 145; Gray v. Durland, 50 Barb. 100; Kennedy v. N. Y. C. & H. R. R. Co. 35 Hun, 186; Furman v. Van Sise, 56 N. Y. 435; Simpson v. Buck, 5 Lans. 337; Coin v. Dwight, 8 Iowa, 116; Coughlan’s case, 24 Md. 107; County Comrs. v. Hamilton, 60 id. 340; Benson v. Remington, 2 Mass. 113; Nightingale v. Worthington, 15 id. 261; Dedham v. Natick, 16 id. 135; Snediker v. Everingham, 3 Dutch. 143; Osborn v. Allen, 2 id. 388; Campbell v. Campbell, 3 Stockt. Ch. 268; Hammond v. Corbett, 50 N. H. 504; N. J. & C. R. R. Co. v. Cook, 63 Miss. 38; Clark v. Bayer, 32 Ohio St. 299; Mathewson v. Perry, 37 Conn. 435; Ohio and Mississippi Railroad Co. v. Findall, 13 Ind. 366; Oldfield v. N. Y. & H. R. R. Co. 14 N. Y. 310; Schouler on Domestic Relations, sec. 239; 17 Am. & Eng. Ency. of Law, 379; 14 id. 756, note.
By statute the mother is liable for the expenses of the family and of the education of the children, and may bind her child under sixteen years of age as an apprentice.
In the case at bar the mother being entitled to the earnings of her son, to enable her to recover substantial damages it was not necessary to prove pecuniary loss. Such loss will be presumed. The instruction was therefore properly refused.
Complaint is made of the rulings of the trial court in refusing other instructions asked by defendant below, but we are of the opinion no error was committed in this respect. We have carefully examined these refused instructions and considered the argument of counsel respecting them, and are constrained to agree with the Appellate and circuit courts in the rulings complained of.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
