Mercer v. Jackson

• Decision Date: 30 September 1870
• Citation: 54 Ill. 397,1870 WL 6350
• Parties: HENRY MERCERv.NOYES L. JACKSON.
• Court: Illinois Supreme Court

54 Ill. 397

1870 WL 6350 (Ill.)

HENRY MERCER

v.NOYES L. JACKSON.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Chicago.

This was an action brought by the plaintiff, to recover for the death of his son, caused by the alleged negligence of the defendant. The opinion contains a statement of the case.

Messrs. MOORE & CAULFIELD, for the plaintiff in error.

The question presented by the second count in the declaration is, whether the father could recover for the loss of his son's services who had attained his majority. We claim that when a son continues to live with, work for, and pay over his wages to his father after his majority, just as he did before, he has not emancipated himself from his father, and the father can recover for the loss of his services. Brown v. Ramsay, 5 Dutcher's Rep. 117; Miller v. Miller, 16 Ill. 298; Hillsboro v. Deering, 4 N. H. 86; Poultney v. Glover, 23 Vt. (8 Washburne) 328; Ball v. Bruce, 21 Ill. 162; Steel v. Steel, 12 Penn. State R.; Vassel v. Cole, 10 Miss. 634; Overseers of Alexandria v. Overseers of Bethlehem, 1 Harrison, 121; Rex v. Offchurch, 3 T. R. 116; Rex v. Wittom, 3 T. R. 355; Rex v. Collingbourn, 4 T. R. 199; Rex v. Roach, 6 T. R. 247, 251; see cases quoted, p. 121, 1 Harrison.

The reasonable expectation of pecuniary advantage from the life of deceased, is a ground for damages. It is not necessary that there should be a strict legal right in the plaintiff to his services. Dalton v. G. E. Railway Co. 93 Eng. Com. Law Rep. 296, 304; Franklin v. S. E. Railway Co. 3 Hurlston & Norman's Rep. 211; Blake v. Medland Railway Co. 83 Eng. Com. L. Rep. 93; Oldfield v. N. Y. & Harlem Railway Co. 14 N. Y. 310; Penn. Railway Co. v. McClosky, Admr. 23 Penn. 526; Penn. Railway Co. v. Bantom, 54 Penn.; Ill. Cent. Railway Co. v. Barron, 5 Wallace, 43.

Mr. H. A. WHITE, and Mr. W. T. BURGESS, for the defendant in error.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action for an injury to Thomas Mercer, by reason of the alleged negligence of defendant's servants, whereby he was greatly hurt and came to his death.

The title of the plaintiff to maintain such an action, is rested upon the ground of an injury to the relations of master and servant, and parent and child.

The first count of the declaration shows that defendant was building a house on a lot owned by him in the city of Chicago, and employed in the erection of the house certain servants to do the carpenter's work, and a man by the name of Mortimer, as his servant to do the brick and mason work; that Mortimer employed a man named McDermot to do the stone facing, and that McDermot employed certain laborers on the work, and, among others, the deceased, the son of plaintiff; that on the inside of the building the carpenters had made a temporary ladder by nailing pieces of plank across the studding, by means of which the men could go up and down in doing their work; that on the twelfth of July, A. D. 1869, the plaintiff's son and servant was ascending said ladder, and one of the cross pieces, being negligently secured, gave way, and precipitated him to the ground, by reason of which, after lingering some weeks, he died; that plaintiff was put to great cost in nursing, burying him, etc The second count shows substantially the same thing, with this addition: that the deceased was just over twenty-one years of age, but that he lived with his father, and continued to work and labor for him, and pay over his wages to him as he had done before he arrived at his majority, and helped plaintiff to support his family; that plaintiff was, and is old and infirm, and has no means of support.

The third count sets forth the statute of Illinois, which requires children to support indigent and infirm parents.

To this declaration defendant demurred, and the demurrer was sustained by the court, and judgment given for defendant.

It appears from the declaration that Jackson was the owner of the building, and employed a carpenter to do the carpenter work, and a mason to do the mason work; but it does not appear that it was the duty of the carpenter to build, in the course of his employment as such, this ladder, for the masons to use, nor that he was specifically employed by Jackson to do it.

From the statements in the declaration, the natural inference is, that the mason contractor was to furnish such means for the performance of his work under his contract as he might deem necessary, and the carpenter contractor to furnish such as might be necessary for his; but nothing is shown why the mason had the right to use the facilities of the carpenter;...