Covington Street-Railway Co. v. Packer
| Decision Date | 12 April 1872 |
| Citation | 72 Ky. 455 |
| Parties | Covington Street-railway Co. v. Packer. |
| Court | Kentucky Court of Appeals |
APPEAL FROM KENTON CIRCUIT COURT.
W. J. BERRY, J. G. CARLISLE, C. D. FOOTE, For Appellant.
PRYOR & CHAMBERS, For Appellee.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
The appellee, James Packer, instituted the present action against the Covington Street-railway Company, alleging that the company, while using and running its cars upon Third Street, in the city of Covington, by its agents and employees wrongfully and without the consent of the appellee induced his (appellee's) son, George Packer, eight years of age, to get upon the cars of the company; and in the attempt to put his son off the car its agent and employee carelessly and negligently ran the car over him, and by reason of this negligence his son was greatly injured, and in a short time thereafter died, etc. It is further alleged that the son at the time resided with the father, and that by reason of this wrongful act he had been deprived of his services, and put to great expense in nursing, paying medical bills, etc. An issue was formed by the pleadings, and a verdict given for the appellee for four hundred and fifty dollars, upon which a judgment was rendered, and the case is now here for revision.
A number of instructions were asked for in the court below by counsel for both parties, and we perceive no valid objection to the action of the court in giving or refusing any of them, except instruction No. 4, given at the instance of the plaintiff. The jury were told by this instruction that the plaintiff was not restricted to the actual damages sustained by him; but they might, in their discretion, find such compensatory damages as they might deem just and proper, in view of all the evidence, for the mental anguish and injury to the affections of the plaintiff occasioned by the injury and suffering of the child, not exceeding the amount claimed in the petition.
At common law in cases of injuries to the person, if either the party who committed or who received the injury died, the action abated, the maxim being actio personalis moritur cum persona. This rule of law has, to some extent, been changed in this state by various statutory enactments, under which actions may in many instances be prosecuted in the name of the personal representative of the party killed. The present cause of action, however, is not based upon any of these statutes. The father of the child is seeking to recover upon the alleged ground that he was entitled to the services of the child, and the foundation of the action is the relation of master and servant. It is not maintained because the appellee is the father of the child, but upon the ground alone that he is entitled to the child's service. If a servant in his employ, in no wise related to him, and to whose services he was entitled, had been injured in the same manner, this action could have been maintained by the appellee for the loss of service, and the criterion of recovery would have been in every respect identical. It results therefore that if the parent can recover damages to the same extent for an injury to one who is not related to him by reason of this loss of service, his recovery is limited in the same manner for an injury to his child. No damages can be awarded him because of his injured feelings as parent. The child, if living, could maintain an action and recover such damages as are sought in this case upon facts showing an injury from negligence, and so could the servant; and if the father or master can also recover such damages, the party committing the wrong is made to pay double damages.
It is not pretended that the appellee can recover for the loss of his son's life, as the cause of action for such injuries dies with ...
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