State, for Use of Strepay v. Cohen

• Court: Maryland Supreme Court
• Citation: State, for Use of Strepay v. Cohen, 166 Md. 682, 172 A. 274 (Md. 1934)
• Decision Date: 26 April 1934
• Docket Number: 28.
• Parties: STATE, FOR USE OF STREPAY ET UX., v. COHEN ET AL.

172 A. 274

166 Md. 682

STATE, FOR USE OF STREPAY ET UX., v. COHEN ET AL.

No. 28.

Court of Appeals of Maryland

April 26, 1934

Appeal from Baltimore City Court; Charles F. Stein, Judge.

Action by the State, for the use of John Strepay and wife, against Morris Cohen and another, to recover damages for the death of John Strepay, Jr. From a judgment for use plaintiffs in an unsatisfactory amount, they appeal.

Affirmed.

BOND C.J., and URNER and ADKINS, JJ., dissenting.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

J Marshall Neel and Lester H. Crowther, both of Baltimore (Webster C. Tall, of Baltimore, on the brief), for appellants.

Edward L. Ward, of Baltimore (Edwin W. Wells and Herbert Levy, both of Baltimore, on the brief), for appellees.

PARKE Judge.

The action in this case was brought by the state under article 67 of the Code (section 1 et seq.) to recover for a father the damages suffered from death of his minor son by negligence of the defendant. The appeal is from the rulings which excluded evidence of the funeral expenses of the son and limited the recovery of compensation for a loss of services and support by the son to the period of the minority of the son. The death of the son was twenty days before he would have reached the age of 21 years. The father was 46 years old and had recently had an arm amputated. The dead son was unmarried and lived at home with his parents. Two brothers, a sister, and a stepbrother of the dead son, whose ages range from 10 to 16 years, are the other members of the family living at home.

1. The father paid the son's funeral expenses, but his offer to prove the amount and reasonableness of the expenses as damages for which he was entitled to compensation under the statute was rejected. The ruling was correct. No allowance can be made for funeral or mourning expenses. Poe's Pleading (Tiffany Ed.) § 464, p. 465. "The course of authority is far too strong to justify us in saying that an action to recover funeral expenses will lie under that act. * * * By those decisions it has been held that that is not the kind of damage which is in contemplation of Lord Campbell's Act, but what is contemplated is the pecuniary loss which has been sustained by one member or the whole of a limited class by reason of the wrongful act in respect of which the deceased could have brought an action had he lived." Lord Alverstone, in Clark v. London Gen Omnibus C., [1906] 2 K. B. 648, 658, 2 British Rul. Cas. 694, with note; Barnett v. Cohen, L. R. 2 K. B. 461, 473; cases collected and reviewed in 54 A. L. R. 1077.

2. The plaintiff assigns as error the various rulings which excluded from the case all claim for prospective loss of services and assistance by the father after the son would have arrived at full age, had he lived. The adverse action by the court was on offers to prove that at the time of the son's death the father was not able to work, and had no income in addition to that received from the son; that the son had expressed an intention to make future contributions to the support of the father; that the father had just come from the hospital at the time of his death; and that the life expectancy of the father was twenty-three years. And, finally, at the close of the case, the jury were instructed by the defendant's request that recovery could not be had for loss of the son's services and support beyond his majority. These rulings have been grouped as they present a common problem.

The first case on appeal in which this court considered the right of a surviving parent to recover damages for the expectancy of benefits to be received after the majority of an infant child whose death was caused by the wrongful act of the defendant was State, to Use of Coughlan, v. Baltimore & Ohio Railroad Co. (1866) 24 Md. 84, 87 Am. Dec. 600. In that appeal, the action was brought for the use of the mother to receive damages for the negligent killing of her son at the age of 10 1/2 years. The plaintiff asserted the right to prospective damages by a prayer which the nisi prius court rejected and gave its own instruction which confined the jury to the pecuniary damages sustained by the plaintiff, and to "such a sum as the jury 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." Page 95 of 24 Md.

In response to the objection that this instruction limited the mother to compensation for the loss of her son's services during his minority only, this court 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 his minority only (the father being dead); 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, but the law has no standard by which to measure their loss." Pages 107, 108 of 24 Md.

In the case cited, the infant was, at his death, too young to be of assistance or to manifest his willingness to assist his parent. However, in Agricultural & Mechanical Association v. State, Use of Carty (1889) 71 Md. 86, 18 A. 37, 39, 17 Am. St. Rep. 507, the son was 19 years and 7 months old when he was wrongfully killed through the negligence of the defendant, and he had been emancipated two years before his death by his father, but had voluntarily given each year since his emancipation a part of his wages to his father and had declared "that after he got of age he would help fix up the property" of the father.

It will be observed that the minor was emancipated, but lived at home when not at work and was presently and voluntarily contributing regularly of his earnings to his father and had promised that, after he reached his full age, he would aid his father in improving the father's property. Furthermore, the trial court declined to limit the father's right to compensation to the loss of his son's service until he should arrive at the age of 21. So the question was directly presented whether in an action under the Maryland statute, which is similar to the English enactment known as Lord Campbell's Act, the jury should be allowed to consider as an element of damages any expectation of pecuniary benefit to the father from the interrupted continuance of the child's life beyond majority.

This court was aware of the conflict of authority on this question in other states, and its decision in State, to Use of Coughlan, v. Baltimore & Ohio R. R. Co., supra, was reached after a consideration of the conflicting decisions on the subject-matter. The doctrine thus deliberately adopted was consistently applied in Cumberland, etc., R. R. Co. v. State, to Use of Moran (1876) 44 Md. 283, 286, 295, where minor killed was a fireman on a locomotive engine, and in Baltimore, etc., R. R. Co. v. State, to Use of Stansbury (1880) 54 Md. 648, 652 (sixth prayer), where a lad of about 12 years of age was killed while tending his father's cows which were grazing in the meadow adjoining the railway tracks. So, while stating there was a conflict of authority on the subject in other jurisdictions, the court in Agricultural & Mechanical Association v. State, Use of Carty, supra, declared the question settled so far as this state is concerned by State, to Use of Coughlan, v. Baltimore R. R. Co., supra. After quoting the passage found in this opinion, the court enforced the reasoning by saying through Judge Miller: "The legal right of the mother to the services of her minor son is referred to as furnishing a safe basis from which the jury may reasonably infer that she suffered a pecuniary loss by his death, and as affording her a reasonable expectation of pecuniary benefit from the continuance of his life during minority. But what a minor child may be able or willing to do for his father or mother after he becomes of age, when he has the right to leave the parental roof and set up for himself in life, and before his willingness and ability have been tested by experience, is, as we understand the court to say, a matter of conjecture, too vague to enter into an estimate of damages in such a case." Pages 102, 104 of 71 Md., 18 A. 37, 38.

The two cases mentioned are recognized by writers on the subject as defining and stating the position of this tribunal with reference to the rule to govern in this state. Tiffany's Death by Wrongful Act, § 165; Black on Law and Practice in Accident Cases, § 267, note 82; Bond v. United Railroads of San Francisco, 159 Cal. 270, 113 P. 366, 48 L. R. A. (N. S.) 691, Ann. Cas. 1912C, 50; Western Union Telegraph Co. v. State, Use of Nelson (1896) 82 Md. 293, 295, 313, 33 A. 763, 31 L. R. A. 572, 51 Am. St. Rep. 464, plaintiffs' second prayer (child of 11 years); Poe's Pleading (Tiffany Ed.) § 464, p. 466.

Throughout the state these two decisions have been regarded as having weighed the authorities and reasons in support of the conflicting views and as having definitively adopted the doctrine that, in an action under the statute to recover damages for the death of a minor child, the jury should not be allowed to take into account any expectancy of pecuniary benefit to the parent beyond the life of the...