Agricultural & Mechanical Ass'n v. State

Decision Date11 June 1889
Citation18 A. 37,71 Md. 86
CourtMaryland Court of Appeals

Appeal from circuit court, Washington county; A. K. SYESTER, Judge.

Action for damages by the state of Maryland, to use of Samuel Carty against the Agricultural & Mechanical Association of Washington county. Judgment for plaintiff, and defendant appeals.


Frederick F. Comas, Edward Stake, and Alexander Neill, for appellant.

Henry H. Keedy and J. Clarence Lane, for appellee.


This suit was brought under the negligence law, by a father to recover damages for the death of his minor son, caused, as it is alleged, by the negligence of the defendant. Many actions have been brought under this statute, and they seem to be daily increasing in number. The legal principles which govern them are familiar, but there is always more or less difficulty in the application of these principles to particular cases. Here the boy killed was 19 years and seven months old, and he met his death under peculiar circumstances. We gather from the record that in October, 1888, the defendant held a fair on its grounds at Hagerstown. Among the exhibitions offered for the amusement of visitors were balloon ascensions and trapeze performances in the air. The preparations for these were in a circular inclosure in a part of the fair-grounds, and several large poles were planted by which the balloons could be stayed and held while they were in process of inflation and made ready to be sent up. One of those poles, which it is alleged was insecurely fixed in the ground, fell upon the boy, and killed him. He had a ticket as keeper of stock which admitted him to the fair-grounds free of charge, but with all the privileges of an ordinary visitor. There was the usual conflict of testimony as to negligence on the part of the defendant, and as to contributory negligence on the part of the deceased, but on this part of the case little need be said. We find no error warranting a reversal in the instructions on these subjects given to the jury by the learned judge before whom the case was tried, in granting the plaintiff's third and fifth prayers, and the defendant's third, fourth, eighth, ninth, and tenth prayers. The defendant's fifth, sixth, and seventh prayers on the same subject were properly rejected, because those granted fully covered the law, as to this branch of the case. The multiplication of prayers substantially the same on subjects about which the law has been thoroughly well settled is a practice much to be deprecated.

But the question most earnestly argued arises upon the rulings as to the measure of damages. The judge was clearly right in instructing the jury that in estimating the damages they were confined to the pecuniary damages sustained by the plaintiff. The authorities all agree that in suits under Lord Campbell's act, and similar statutes in this country, pecuniary damages only can be recovered. Nothing can be given the father as a solatium for the bereavement suffered by the loss of his child. The statute does not deal with the priceless value at which a father holds the life of his child, and only professes to compensate him for the pecuniary loss he may sustain by his death. But the court told the jury, that, in estimating such damages, they could allow the father what they may believe, from all the evidence in the case, will be an adequate compensation "for the loss of his son's life," and refused to instruct them that they could only give such as they may believe from the evidence will be an adequate compensation for the loss of his son's services "until he should arrive at the age of twenty-one years." So the question is fairly raised whether, in a suit by a father under this statute to recover damages for the death of a minor child, the jury should be allowed to take into account any expectation of pecuniary benefit to the plaintiff from the continuance of the child's life beyond minority.

There is conflict of authority on this subject in other states. Railroad Co. v. Zebe, 33 Pa. St. 330; Caldwell v. Brown, 53 Pa. St. 453; Birkett v. Ice Co., 110 N.Y. 504, 18 N.E. 108. But, so far as this state is concerned, we think the question has been settled. It first arose in the case of Coughlan v. Railroad Co., 24 Md. 84, which was decided in 1865, and is among the first, if not the first, case in which this statute was construed, it having been passed in 1852. In that case the boy killed was between 10 and 12 years of age. He had no father living, and the suit was brought by his widowed mother, who had a large family, and kept a small grocery store. He was her eldest child, a smart, likely lad, who attended the store when his mother was absent, and his services were worth to her from five to six dollars per month at the time the accident occurred. The court below (MARTIN, J.) instructed the jury on the question of damages, that they could only give the mother such sums as they "may believe from all the evidence in the case will be an adequate compensation for the loss of her son's services from the time of his death to the period when, if he had lived, he would have attained the age of twenty-one years." This instruction was vigorously assailed by able counsel in argument, but this court affirmed it, and said: "To submit to a jury the value of a life without limit as to years would have been to leave them to speculate upon its duration without any basis of calculation. The law entitles the mother to the services of her child during minority only. Beyond this, the chances of survivorship, his ability or willingness to support her, are matters of conjecture, too vague to enter into an estimate of damages merely compensatory. According to the appellant's theory, the mother and son are supposed to live on together to an indefinite age; the one craving sympathy and support the other rendering reverence, obedience, and protection. Such pictures of filial piety are inestimable moral examples, beautiful to contemplate,...

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