is true, that at common law the right of action ceases with the life of the injured party; but the theory of the statute is, that the next of kin have a pecuniary interest in the life of the person killed, and the value of this interest is the amount for which the jury are to give their verdict. Neither the personal wrong nor outrage to the decedent, nor the pain and suffering he may have endured, are to be taken into account. These would be the foundation of the action, and would furnish the criterion of damages, if death had not ensued, and the injured party had brought the suit."

The statute of New York, under which the foregoing decision was made, authorized the jury to give such damages as they deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of the deceased person; and in the case of Oldfield v. N. Y. and Harlem R. R. Co., 14 N. Y. 318, it was held, that "the jury who had all the circumstances of the casualty, and the precise condition and relationship of the parties before them, should give such compensation as they should deem fair and just, keeping in view that it was to be measured by the injury done to the next of kin. They were not to compensate for the pain and suffering endured by the deceased, or the anguish and mental distress of a wife or children incident to the loss of a husband or father, but were to measure the compensation by the pecuniary injury exclusively, the statute assuming that every person possesses some relative value to others." In this case, the court below instructed the jury, "that they could not give damages for the physical suffering of the child, or the anguish of mind inflicted upon the parent by such a calamity; that the measure of compensation was strictly pecuniary, to indemnify fully for any pecuniary loss that may have attended or resulted from the death of the child ;" and the Court of Appeals held, that the instruction was properly given. Justice Comstock, in his concurring opinion, says: "In this case, if the child had been only wounded instead of killed, the action to recover the expenses incurred in its cure and for the loss of service could have been maintained only by the parent or the person entitled to the service. But the child could also sue for the personal wrong to itself."

In the case of The Pennsylvania R. R. Co. v. Zebe, et ux, 33 Pa. St. 328, it was said that "the measure of damage is not the loss or suffering of the deceased, but the injury resulting from his death to his family."

In the case of The Pennsylvania R. R. Co. v. Kelly, 7 Casey, 372, the court says: "The damages must be compensatory merely, and that compensation must have regard to the plaintiff's loss of his son's services, and to the expenses of nursing and professional treatment. The father was entitled to the services of his child during minority, and by just so much as this injury impaired the value of that right was he entitled to compensatory damages."

And it was added: "That it was proper for the jury to understand that the sufferings endured by the boy, and the disfiguration of his form, and whatever was merely personal to him, should not enter into the father's damages, because for them the son would have a right of action."

The law upon this subject is well stated by Shearman & Redfield in their work on Negligence. (§ 608.)

"The damages recoverable by a parent, guardian, or master, for a negligent injury to the person of his child or servant, are strictly limited to an amount fully compensatory for the consequent loss of services for a period not exceeding the minority of the child or the term of service of a servant, and the expenses which the plaintiff has incurred in consequence of the injury, such as for surgical attendance, nursing, and the like... Damages awarded upon any other grounds than these clearly belong to the person corporally injured, whose right to sue, it must be remembered, is entirely unaffected by the action of his parent or master. If the latter should' be allowed to recover for the pain and suffering of the servant (or child), it would follow, either that the servant (or child) could not recover himself for the same cause, or that the negligent person would be liable to pay twice the amount of damage which he had really done. Either alternative is contrary to justice and common

sense."

We have thus seen, that, under statutes more or less similar to our own, as well as according to the principles of the common law, two actions can be maintained for damages, such as are claimed in this case: one in behalf of the parent, and the other in behalf of the minor. When the action is brought by the parent, loss of service, medical attendance, expenses of nursing, and the like are matters to be considered by the jury, and in such cases compensation is the rule. It is true, that much is left to the sound discretion of the jury, as in the very nature of things no precise measure of damages can be established for any particular case; but when the action is brought on behalf of the child, there are other separate and distinct elements of damage. The child recovers, not for loss of time or service or medical attendance or expenses of curing, but for the injury personal to himself, such as pain and suffering, both physical and mental, disfigurement, etc.

This brings us to the question how far the rule above laid down is affected by the provisions of the Code of Civil Procedure. It will be observed that § 376 provides that "the father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward.” Here we have two rights of action for the same cause: one in behalf of the father, and the other is given to the guardian. Is the measure of recovery the same in both? If it is, then the negligent person would be liable to pay

twice the amount of damage he had really done, which, in the language of the work on negligence referred to above, would be contrary to justice and common sense. When, therefore, § 377 of the Code of Civil Procedure provides that," in every action under this and the preceding section, such damages may be given as under all the circumstances of the case may be just," it was not intended that the party guilty of the negligent and wrongful act should be compelled in the first place to pay the full measure of damages sustained to the father, and afterwards to pay the same amount to the guardian for the use of the minor. It is, therefore, reasonable to presume that the Legislature had in view the principles of the common law as the same are applicable to cases of this character, and intended that the father should recover such damages as he has sustained, by way of compensation, leaving to the infant a further right of recovery of such damages as are personal to himself. This brings us to the charge and instructions of the learned Judge to the jury in the case now under consideration. Several parts of the charge were duly excepted to by the defendant, the first of which we will notice is the following:

"The question of damages is one for your consideration; and you may award such damages as in view of all the circumstances -the mental capacity of the boy himself, and of the injury inflicted upon him-may seem to you just. Whatever amount of money, in your judgment, will compensate him for his injuries, that will be the amount of your verdict."

It seems to us that the foregoing portion of the charge is not in harmony with the rule of damages laid down by the authorities, and applicable to this case. The question was, not what damages would compensate him, the infant, for the injury inflicted upon him, but what damages would compensate the father for the loss incurred by him.

The refusal of the court to give the following instruction offered by the defendant is also assigned as error:

"Instruction No. 7. Plaintiff is not entitled to recover in this action damages for the pain or suffering which his son, Milton W. Durkee, experienced from the injuries he received, or for his disfigurement therefrom."

Under the authorities considered above, this instruction was proper, and should have been given.

We are of opinion that for these errors the judgment and order of the court below should be reversed, and it is so ordered. Sharpstein, J., and Thornton, J., concurred.

Myrick, J., concurred in the judgment.

McKinstry, J., concurring.

I concur. The complaint avers: "He, the said plaintiff, was, at the times hereinafter mentioned, and is the father of Milton W.

Durkee, an infant hereinafter mentioned, and that said infant has always been cared for and maintained by said plaintiff."

The complaint contains no averment of loss of service, or of expenses incurred or paid by the father in consequence of the injuries suffered by the child. The action is evidently based upon the idea that the statute (Code Civ. Proc. 376) has provided that the father, as natural guardian of his infant child, may maintain an action-for the benefit of the child-to recover damages for injuries done the infant by the wrongful act or neglect of another— an action independent of and entirely distinct from another action which he may bring “per quod servitium amisit," etc. It is quite clear that the two actions cannot be united; for in such case it would be impossible to determine how the judgment should be divided-how much of the verdict was intended for the father individually, how much for him in his capacity of trustee for the infant.

The averments in the complaint with respect to the facts out of which the plaintiff's alleged claim for damages has arisen are as follows: "And said defendant, by its said conductor and engineer, and without the fault of plaintiff, and without plaintiff or the said Milton W. Durkee in any manner contributing thereto, negligently, carelessly, heedlessly, and wantonly ran said locomotive engine upon and over the person of the said Milton W. Durkee, and then and there, and thereby, so wounded, mangled, crushed, and broke the feet, ankles, and legs of him, the said Milton W. Durkee, that it became and was necessary to amputate and cut off, at or near the ankles, both of the feet of him, the said Milton W. Durkee; and in consequence of said wounding, mangling, crushing, and breaking, the said feet of the said Milton W. Durkee were, on, etc., necessarily amputated and cut off by a surgeon employed by plaintiff for that purpose; and by means of said injuries and amputations, the said Milton W. Durkee suffered and endured great pain and anguish, and has lost and been deprived of both his feet." The prayer is: "Plaintiff demands, as relief herein, judgment against said defendant for the sum of fifty thousand dollars, and the costs of this action."

It is obvious that the only damages alleged are such as are personal to the son, and for which the infant, by his guardian, could maintain an action. Unless the statute has in effect made the father guardian, and authorized him as such to recover damages in an action like the present, to be held by him in trust for the benefit of the infant, this judgment cannot be upheld. The section of the Code of Civil Procedure does not declare that the father may maintain the action for or on behalf of the infant, all of which is implied when the word "guardian" is employed; nor does it provide against any fraudulent or improvident waste of the moneys which may be recovered, as by requiring the father to give bond, or other

wise. To construe the section of the Code so as to authorize the present action, we would have to interpolate the words as "trustee❞ or "as guardian," or " for the use and benefit of the infant," or some other equivalent or more specific expression, and would also have to hold that the beneficiary can have no other protection as against waste or fraud, than such as may be afforded by a court of equity by reason of its general jurisdiction in matters of trust. The Courts are justified in holding that an intent on the part of the Legislature which contemplates so broad a departure from the common law, and involves consequences so serious, shall be clearly and distinctly expressed.

It can hardly be said, however, that the section of the Code is ambiguous. The language employed seems to me a plain enactment that the "father" may himself recover damages for the "injury or death" of the infant. In case of death, the damages recovered, whatever the rule of damages, must inure to the benefit of the father. There is nothing in the language itself to indicate that a different beneficiary was intended where the injuries do not result in death.

But it surely cannot require argument to establish that the Legislature has no power to authorize one person to recover, and apply to his own use, damages for an injury sustained by another; nor can it be necessary to do more than refer to the constitutional limitations which prohibit such legislation. If such power existed, it would include a power to deprive a citizen of his property "without due process of law."

Penna. R. R. Co. v. Kelley, 31 Pa. St. 372; Oakland R. R. Co. v. Fielding 48 Pa. St. 323; Stewart v. Ripon, 38 Wis. 584; Karr v. Parks, 44 Cal. 46.

THE ATCHISON, TOPEKA AND SANTA FE R. R. Co.

V.

JAMES SMITH, by his next Friend, WILLIAM SMITH.

(Advance Case, Kansas. October 3, 1882.)

The case of Smith v. the Atchison, Topeka and Santa Fe R. R. Co., 25 Kas. 738, referred to and followed.

The Atchison, Topeka and Santa Fe R. R. Co. owned a side track about 450 feet in length, situated wholly upon its own right-of-way, and partially within and partially outside of the corporate limits of Osage City, Osage County, Kansas, and near several dwelling-houses. It was not enclosed by any fence, and children occasionally played upon it. A coal shaft was situated by the side of it, about 300 feet from where it connected with the main track; and from the coal shaft toward the main track. It descended to a point within about 75 feet of the main track, and then ascended to the main track;