58 Vt. 40 | Vt. | 1886
The opinion of the court was delivered by
By pleading to the first and fourth new counts, the defendants waived their right to move to dismiss them as being for a cause of action not embraced in the original declaration.
Defendants requested the court to charge that no recovery could be had for pecuniary injury resulting to plaintiff by the death of his son, though caused by the wrongful act of the defendants; but the court refused to charge as requested, but charged that plaintiff might recover for loss of services of his son until he would have been of age. In this there was error, for the authorities are numerous and well-nigh uniform, that at common law the death of a human being, though clearly involving pecuniary loss, affords no ground for an action for damages. Cooley on Torts, 262; Carey & Wife v. The Berkshire R. R. Co. and Skinner v. The Housatonic R. R. Co. 1 Cush. 475; Green v. The Hudson River R. R. Co. 2 Keyes, 294; s. c. 28 Barb. 9; Insurance Company v. Brame, 95 U. S. 754, and cases passim.
The court charged that the jury might give exemplary damages on the ground of the beating of plaintiff’s son. This was also error. Such damages would have been recoverable by the son, and are recoverable by his administrator— Earl v. Tupper, 45 Vt. 275 — but they are not recoverable by the plaintiff; his recovery on this score- is limited to actual damages. Whitney v. Hitchcock, 4 Denio, 461. If the rule were otherwise, the defendants might be twice subjected to
Reversed and remanded.
