§ 7120. Pleading the Fact that Deceased was Unmarried.—Where the statute gives a right of action to the parent of one who was a minor and unmarried, the petition is defective unless it states that the deceased was unmarried;20 but an allegation showing that the deceased was of tender years, as, for example that he was two,21 or six years of age,-sufficiently shows that he died unmarried.22

24

§7121. Averment of Survival, or of Immediate or Instantaneous Death-In States where the statute requires the survival of the injury by the deceased for an appreciable time, as a condition to a recovery at all, the fact of survival must be clearly set forth and not left in doubt.28 Under the Maine statute, which gives a right of action to the personal representative of a decedent, whose immediate death was caused by the negligence complained of, it is not necessary that the declaration should contain the averment of such immediate death, but the statute is complied with if it necessarily appears that the death was immediate.25 Thus, where the negligence complained of was the failure of the defendant to provide suitable fire-escapes on a building owned by him, an allegation that the deceased, being properly in the third story when the fire broke out, by reason of such negligence, without fault on her part, was then and there burned to death and consumed by said fire, and then and thereby lost her life, sufficiently avers the immediate death of the deceased within the statute. But where a complaint failed to aver in either count that the deceased died immediately, and in the first and second counts it alleged that he died within twenty minutes, and in the third count that he received injuries from which he afterwards died, and in the first. and second counts it also affirmatively appeared that the deceased

asch, 8 Kan. App. 61; s. c. 54 Pac. Rep. 323; Luessen v. Oshkosh Electrie Light &c. Co., 109 Wis. 94; s. c. 85 N. W. Rep. 124. A complaint against a street-railroad company for running over and killing an infant child, which alleges that the plaintiff is the father of the child, and that he would have been entitled to her services had she lived, s not defective in failing to allege that the father is entitled to the services and earnings of the child: Elwood Electric R. Co. v. Ross, 26 Ind. App. 258; s. c. 58 N. E. Rep.

535.

"Dulaney v. Missouri &c. R. Co.,

ary is sole heir and the only person authorized to bring suit sufficiently avers fact that deceased was married).

un

21 Czezewzka V. Benton-Bellefontaine R. Co., 121 Mo. 201; s. c. 25 S. W. Rep. 911.

22 Baird v. Citizens' R. Co., 146 Mo. 265; s. c. 48 S. W. Rep. 78.

Beckman v. Georgia Pac. R. Co. (Miss.), 12 South. Rep. 956 (no off. rep.).

24 Me. Pub. Laws 1891, ch. 124. 25 Carrigan v. Stillwell, 97 Me. 247; s. c. 61 L. R. A. 163; 54 Atl. Rep. 389.

26 Carrigan v. Stillwell, 97 Me. 247; 21 Mo. App. 597; Brennan v. Molly s. c. 54 Atl. Rep. 389; 61 L. R. A.

Gibson Consol, &c. Co., 44 Fed.

Rep. 795 (allegation that benefici

163.

suffered much in mind and body, the complaint was held insufficient under the statute, and was held to describe only the common-law right of action, in which the damages recovered must be for the benefit of the decedent's estate.27

§ 7122. Custody of Children in Care of Another.-A complaint by a father against a street-railroad company for running over and killing his infant child while the latter was living with its grandparents, is not defective for failure to allege that the plaintiff had the care, control, and custody of the child. 28

§ 7123. Joinder of Causes of Action.-The statutes creating a remedy for death by wrongful act are generally construed to provide but one right of action,29 and not to allow a union of a cause of action commenced by the deceased personally in his lifetime for injuries to his person, which survives under the statute, with an action given by the statute for the benefit of his family.30 So, it has been held in Pennsylvania, where the action for death is prosecuted by the widow, and not by the personal representative of the deceased, that, if the husband dies before the trial, and his widow is substituted in the action as his administratrix, there can be no recovery of damages in such action for his death, but only for the loss sustained by the deceased by reason of

27 Conley v. Portland Gaslight Co., 96 Me. 281; s. c. 52 Atl. Rep. 656.

28 Elwood Electric R. Co. v. Ross, 26 Ind. App. 258; s. c. 58 N. E. Rep. 535.

20 Ewell v. Chicago &c. R. Co., 29 Fed. Rep. 57; Peers V. Nevada Power &c. Co., 119 Fed. Rep. 400; Deford v. State, 30 Md. 179. In Texas Const. 1876, art. 16, § 26, the omission of the words "separately and consecutively," used in the Constitution of 1869, art. 12, § 30, indicates intent to allow only one suit for causing death of husband, etc., for benefit of all persons jointly interested; and the amount awarded by the jury should be apportioned by the jury or court among the persons interested: Galveston &c. R. Co. v. Le Gierse, 51 Tex. 189. Ill. Rev. Stat., ch. 93, § 14, providing that a right of action shall accrue to the widow of a person killed, his lineal heirs, or adopted children, or to any other persons or person, etc., authorizes but one action: Consolidated Coal Co. v. Dombroski, 106 Ill. App. 641. Under the Missouri Damage Act (Wag. Mo. Stat. 519; 1

Rev. Stat. Mo. 1879, p. 349), a father and mother may join as plaintiffs, although they were divorced before the cause of action accrued: Buel v. St. Louis Transfer Co., 45 Mo. 562; Crockett v. St. Louis &c. Transfer Co., 52 Mo. 457. But the causes of action for the death, by the flooding of a mine, of fifty miners, in favor of their respective relatives under Lord Campbell's Act and the Employers' Liability Act, are sereral, and cannot be joined in an action under the English County Court Rules, order 44, rule 18, providing that where two or more persons are joined as plaintiffs, and the negligence shall be proved, the judgment shall be for all, but the amount to be paid to each shall be found and set forth in the judg ment: Carter v. Rigby, [1896] 2 Q. B. 113; s. c. 65 L. J. Q. B. (N. S.) 537; 74 L. T. Rep. 744.

30 Merrihew v. Chicago R. Co., 92 Ill. App. 346; Cincinnati &c. R. Co. v. Chester, 57 Ind. 297. See also, Lucas v. New York &c. R. Co., 21 Barb. (N. Y.) 245.

33

34

his injury. In a State where recovery can be had either for pain of the deceased or for wrongful death, the cause of action for death cannot be properly joined with the cause of action for the pain and suffering of the decedent; but an objection on the ground of a misjoinder must be made before the defendant files his answer, and the plaintiff required to elect under which right he will proceed. But in a case where the plaintiff sought to recover both for pain and suffering and for death, and the court, without requiring him to elect, required the action to be tried as an action for death, and afterward a new trial was granted, it was held that the plaintiff was not concluded on the second trial by the election made by the court on the former trial, but had the right to elect to sue for the pain and suffering.35

$7124. Exemplary Damages must be Demanded.-Exemplary damages may be recovered in jurisdictions allowing such damages only where they are demanded; and where there is no allegation of exemplary damages, compensatory damages alone can be recovered, and the absence of such averment will be regarded as notice to the defendant that only the latter damages are claimed.36

§ 7125. Amendments.-Amendments to pleadings will be allowed as in other cases where they are germane, and are not objectionable as presenting a new cause of action.37 Thus, a complaint may be amended

"Edwards v. Gimbel, 202 Pa. St. damages prayed for, are claimed as 30; s. c. 51 Atl. Rep. 357.

"Lewis v. Taylor Coal Co., 112 Ky. 845; s. c. 66 S. W. Rep. 1044; 23 Ky. L. Rep. 2218; Louisville R. Co. v. Will, 23 Ky. L. Rep. 1961; 8. c. 66 S. W. Rep. 628. But see Ranney v. St. Johnsbury &c. R. Co., 64 Vt. 277; s. c. 24 Atl. Rep. 1053.

"Chiles v. Drake, 2 Metc. (Ky.) 146. For an instance of a negative pregnant in pleading under the statute, see Baker v. Bailey, 16 Barb. (N. Y.) 54.

"Louisville &c. R. Co. v. Miniard, 20 Ky. L. Rep. 2023; s. c. 50 S. W. Rep. 962.

Louisville R. Co. v. Will, 23 Ky. L. Rep. 1961; s. c. 66 S. W. Rep. 628.

Galveston &c. R. Co. v. Le Gierse, 51 Tex. 189; Gilfillan v. McCrillis, 84 Mo. App. 576. See ante, $7080. But see Peers v. Nevada Power &c. Co., 119 Fed. Rep. 400, where it was held under the Nevada statute that it was not necessary that the complaint should specify what portion, or whether any of the

exemplary; the allowance of such damages as well as damages resulting to the kindred being a matter to be determined by the jury in their discretion from the evidence.

37 In an action by an administrator under the Massachusetts Employers' Liability Act for a wrongful death, the declaration alleged that deceased left no widow, but three children, for whom the action was brought. It also alleged that he was instantly killed, and it so appeared on the trial, when defendant moved for a verdict on the ground that the administrator could not sue. It was held that the allegations showed that the cause of action relied on was the right of recovery given by the statute to the next of kin in cases of instant death, and, as the mistake therefore appeared to be not as to the nature of the cause of action, but in supposing that the administrator could sue, the court should have then allowed an amendment of the writ to bring in the proper parties: Silva v. New Eng

by setting up the fact that the deceased left a widow and children, the purpose of such amendment being to perfect the declaration so as to enable the plaintiff to recover on the cause of action already, but imperfectly, stated.98 So, where the petition sets forth, in general terms, the pecuniary loss, the pleader will be permitted to amend by setting forth the particular facts from which such loss is inferrable;** and so, where a petition stated that the deceased was a passenger on a railroad-train, he was allowed to amend so as to allege that he was being transported as an employé ; and, where an action has been instituted in a State other than that in which the injury occurred, the petition may be amended by setting out the statute of the State of the injury.*1

SECTION

40

ARTICLE III. EVIDENCE.

7129. Evidence relating to deceased. 7130. Evidence of earnings under punitive statutes.

7131. Professional income not to be
proved by experts.

7132. Health of deceased.
7133. Photograph of deceased.
7134. Condition and circumstances
of beneficiaries.

7135. Number, age and sex of chil-
dren.

SECTION

7136. Moral character of beneficiary. 7137. Evidence to prove marriage of parties.

7138. Wealth and standing of defendant.

7139. Rules of evidence where action is criminal in form. 7140. Presumptions and burden of proof in actions for deathHabits of deceased.

§ 7129. Evidence Relating to Deceased.-Where the inquiry is directed to the pecuniary loss suffered by the beneficiary because of the untimely death for which the action is brought, it is proper to show the habits of industry' and economy of the deceased, his earn

land Brick Co., 185 Mass. 151; s. c. 69 N. E. Rep. 1054.

38 Chicago &c. R. Co. v. Helbreg, 99 Ill. App. 563; Haynie v. Chicago &c. R. Co., 9 Ill. App. 105.

39 Chicago &c. R. Co. v. Young, Neb.; s. c. 93 N. W. Rep. 922.

40 Kansas &c. R. Co. v. Salmon, 14 Kan. 512.

"Louisville &c. R. Co. v. Pointer, 113 Ky. 952; s. c. 69 S. W. Rep. 1108; 24 Ky. L. Rep. 772.

1Hasber v. St. Paul &c. R. Co., 28 Minn. 103; Wilcox v. Wilmington City R. Co., 2 Pen. (Del.) 157; s. c. 44 Atl. Rep. 686; Chicago &c. R. Co. v. Clark, 108 Ill. 113; Knight v. Sadtler Lead &c. Co., 91 Mo. App. 574; Missouri &c. R. Co. v. Gilmore

(Tex. Civ. App.), 53 S. W. Rep. 61 (no off. rep.).

2 Louisville &c. R. Co. v. York, 128 Ala. 305; s. c. 30 South. Rep. 676; Taylor v. Western &c. R. Co., 45 Cal. 323. But see Baltimore &c. R. Co. v. State, 81 Md. 371; s. c. 32 Atl. Rep. 201. Evidence of amounts of money sent by a railway employé, who had been killed through the negligence of the company, to his relatives and of the amounts invested by him in life insurance, is competent in an action to recover for such negligent killing as tending to show defendant's earning capacity and habits of frugality: Spaulding v. Chicago &c. R. Co.. 98 Iowa 205; s. c. 67 N. W. Rep. 227.

ings at the time of his death, his aptitude for the business in which he was employed, and the amount of property he had acquired." So, evidence is admissible which tends to show whether he was a careful and prudent man; and, as tending to show his net income and gen