benefit, where if an administrator had sued, the recovery must have been divided with children. And where statutes permit

actions to be brought by one of several who would be entitled to sue, and make no provision for distributing the recovery, it would seem that there might be question of the right to maintain two or more actions by the intended beneficia ries severally.

The Beneficiaries.

Where the personal representative brings the suit, his position in respect to it and to the moneys recovered is peculiar. The cause of action is not given in favor of the

estate proper. If it was, the moneys would be accounted [*269] for with *other assets, and, in case of an estate otherwise

insolvent, would be appropriated by creditors. But the purpose of these statutes is to make provision for members of the family of the deceased who might naturally have calculated on receiving support or assistance from the deceased had he survived. Thus, under the English statute the action is to be for the benefit of the wife, husband, parent, or child; it is clear that creditors can have no share in this, but the recovery must be a special fund, to be paid over by the personal representative to the person or persons for whom the statute intends it. It is also obvious that there might be cases in which no action could be brought by an executor or administrator, because of there being no person in existence who would be entitled to the moneys. Thus, if the action be given for the benefit of the widow and children only, and there be neither, there can be no action; and it seems to be necessary in some States to

3

1 See Whitford v. Panama R. R. Co., 23 N. Y. 465; Chicago v. Major, 18 Ill. 349; Waldo v. Goodsell, 33 Conn. 432; Haggerty v. Central R. R. Co., 31 N. J., 349; Houston, &c. Ry. Co. v. Hook, 60 Tex, 403. See Gibbs v. Hannibal, &c. Co., 87 Mo. 143; South, &c. R. R. Co. v. Sullivan, 59 Ala. 272.

2 Chicago v. Major, 18 Ill. 349; Lyon's Admr. v. Cleveland, &c. R. R. Co, 7 Ohio, (N. s.) 336; Andrews v. Hartford, &c. R. R. Co., 34 Conn. 57.

It seems that in Ohio, where the

action is given for the benefit of the widow and next of kin, if the action is brought for the killing of the wife, the husband is entitled as next of kin to such share as he would take in her estate under the statute of distributions; the words "next of kin "being used in the statute in this peculiar sense. Steel o. Kurtz, 28 Ohio, (N. S.) 191. Compare Lucas . N. Y. Cent. R. R. Co., 21 Barb. 245. If parents and child are killed at once, there can be no action. Gibbs v. Hannibal, &c. Co., 82 Mo. 143. The emancipation

name in the declaration the person for whose benefit the suit is brought, and to show the relationship.' But where the recovery is to be distributed as the personal estate of an intestate would be, it must be assumed that kindred exist, and it need not be averred.'

*What is Wrongful Act, Neglect, or Default. In most [*270] cases the question of the right to recover is merely a question of negligence, and is to be governed by the same principles and considerations as questions of negligence where the results were less serious. The reader is therefore referred to the chapter on negligent injuries for their discussion. Where the act was one of intentional violence, the question that would

arise if the right of recovery were disputed must be one of justification or excuse, and would be the same as in cases of trespass to the person.' This also, therefore, requires no special discussion here.

Proximate Cause. The wrongful act, neglect, or default must have been the proximate cause of death. But it is the proximate cause if it inflicts a fatal injury, though the death that would have resulted is anticipated by an unskillful surgical operation.

What Damages Recoverable. It seems to have been made a question, both in England and this country, whether, if the plaintiff showed the wrong, resulting in death, but failed to prove actual damages, he was entitled to recover even the nominal damages which are supposed to flow from any technical legal wrong. In England the rule is settled that the action will not be supported for the recovery of merely nominal damages. The ground seems to be that no one shows himself entitled as beneficiary until he shows that personally he has suffered; in other

'White . Maxcy, 64 Mo. 552. If it is sought to hold one as accessory to a homicide, he must be shown to have done something. His mere presence at the killing is not enough. Gray . McDonald, 28 Mo. App. 477. Under the Kentucky statute, which only gives an action where the death was caused by the "willful neglect" of another, no action will lie if the killing was intentional. Spring's Admr. v. Glenn, 12 Bush, 172. But a carrier is liable for a wanton injury causing death inflicted on a passenger by its servant. Winnegar v. Centr. &c., Co., 4 S. W. Rep. 237. Under the R. I. statute, no liability where the death ensues from a failure to act, as to put a sufficient cover on a cistern. Bradbury v. Furlong, 13 R. I. 15. An action will not lie for hastening death, as of a wounded man carried on the cars. Jackson v. St. Louis, &c., Co., 87 Mo. 422. One

will lie for causing death of a drunk. ard by inducing him to drink a great quantity of liquor at one sitting. McCue . Klein, 60 Tex. 168.

2 Sauter v. N. Y. Cent. &c., R. R. Co., 66 N. Y. 50. Nagel v. Miss. &c., R. R. Co. 75 Mo. 653. See on proximate cause of death. Scheffer Railroad Co., 105 U. S. 249; Beauchamp . Saginaw Mining Co., 50 Mich. 163, and cases in Ch. III. pp. #70 et seq. supra.

Duckworth v. Johnson, 4 H. & N. 653; Boulter v. Webster, 13 W. R 289; 11 L. T., (N. s.) 598. Compare Lyons v. Cleveland, &c., R. R. Co., 7 Ohio, (N. 8.) 336; Pennsylvania R. R. Co. v. Ogier, 35 Penn. St. 60; Quin &. Moore, 15 N. Y. 432. In Kansas nominal damage may be recovered although the life is of no pecuniary value to the next of kin. Atchison, &c. Co., v. Weber, 33 Kan. 543.

words, that, as in some cases of slander, it is necessary to prove special damage, in order to convert what may be a moral wrong into a legal wrong, so here the wrongful act or default is not shown to be a tort to the person complaining of it until he traces perceptible injurious consequences to himself. [*271] But where the statute fixes a minimum of recovery, as some of those in this country do, there would seem to be no doubt of the right of one who establishes a technical ground of action to recover this minimum sum without any specific showing of loss.' But in this country as well as in England, the ground of recovery must be something besides an injury to the feelings and affections, or a loss of the pleasure and comfort of the society of the person killed; there must be a loss to the claimant that is capable of being measured by a pecuniary standard. Exemplary damages are therefore not to be recovered, unless the statute expressly, or by implication, allows them, as in some instances it does. But in estimating *actual dam- [*272] ages, some departure from the standards applied in

Lamphear Buckingham, 33 Conn. 237. The minimum sum fixed by statute was one thousand dollars, and the court awarded it on overruling demurrer to the declaration.

Franklin . Southeastern R. Co.; 3 H. &. N. 211; Blake v. Midland R. Co., 18 Q. B. 93; Pym v. Great Nor. R. Co., 4 Best & S. 396; Mitchell

. N. Y. Cent., &c., R. R. Co., 2 Hun, 535; S. C. 5 N. Y. Sup. Ct. (T. & C.) 122; Chicago v. Major, 18 Ill. 349; Chicago, &c., R. R. Co. v. Harwood, 80 Ill. 88; Rockford, &c., R. R. Co. . Delaney, 82 Ill. 198; Brady v. Chicago, 4 Biss. 448; Needham v. Grand Trunk R. Co., 38 Vt. 294; Louisville, &c., R. R. Co. v. Case's Admr., 9 Bush, 728; Ohio, &c., R. R. Co. v. Tindall, 13 Ind. 366; Ewen v. Chicago, &c., R. R. Co., 38 Wis. 614; Pennsylvania R. R. Co. t. Zebe, 33 Penn. St.318; Pennsylvania R. R. Co. ⚫. Henderson, 51 Penn. St. 315; Telfer v. Northern R. R. Co., 30 N. J. 188; Donaldson v. Mississippi, &c., R.

R. Co., 18 Iowa, 280; Mynning v. Detroit &c., R. R. Co., 59 Mich. 257; Holmes v. Oreg. &c., R. R. Co., 6 Sawy. 262; Galveston v. Barbour, 62 Tex. 172. See St. Louis &c., Co. v. Freeman, 36 Ark. 41. The pain and suffering by the deceased are not elements of damage to be recovered by survivors. Barron v. Illinois, &c., R. R. Co., 1 Biss. 412. In Scotland the jury are permitted to award a solatium for injured feelings. Patterson v. Wallace, 1 Macq H. L. Cas. 748.

See Myers v. San Francisco, 42 Cal. 215, in which a judgment of five thousand dollars for the killing of a child seven years of age by the running of a fire-engine over it, was sustained as not excessive. In Kentucky punitory damages are allowed by the statute when the fatal neglect is willful. Jacobs v. Louisville, &c., R. R. Co., 10 Bush, 263. See Chiles 0. Drake, 2 Met. (Ky.) 146. As to what willful neglect is, see Lexington v. Lewis's Admr., 10 Bush, 677. As to

other cases is essential, as otherwise, in some cases, no recovery could be had at all, though the statute plainly gives the action. If a parent sues for the killing of a minor child, who is yet too young to render services, it is manifest that for the time being there could be no pecuniary loss whatever; and whether the child, if living, would ever become serviceable, must be matter for speculation only. Yet, as the statutes plainly give the right of action for the benefit of the parent, without restriction to circumstances, but manifestly assume that there is some injury in every case, the right to recover in these cases must be deemed unquestionable.' So the parent may recover for causing