in effect denied the survival theory under the act in question here, saying:

"The rule is that compensatory damages only can be awarded in such cases as this. The actual pecuniary loss resulting to the widow and children occasioned by the death of the father is all that can be allowed."

In Walsh v. New York, N. H. & H. R. Co. (C. C.) 173 Fed. 495, the late Judge Lowell, in construing the act (following Judge Rogers' ruling), said:

66 * *

We must here hold that the cause of action did not survive. As the statute is in many respects loosely drawn and ambiguous, so that the intent of Congress does not always appear clearly, the court is justified in saying that this result has been reached with reluctance."

In Fithian v. St. Louis & S. F. Ry. Co. (C. C.) 188 Fed. 842, 844, in passing upon the act Judge Trieber said:

"The importance of having the relationship of the parties for whose benefit the action is brought set out is apparent from the fact that this act does not provide for the survival of the cause of action which the deceased had at the time of his death, but is a new cause of action solely for the benefit of those dependent upon the deceased, and the measure of damages is the pecuniary loss sustained by those for whose benefit the remedy is given."

See, also, Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 135, 21 Sup. Ct. 67, 45 L. Ed. 121.

We are constrained to hold that the right of action declared in favor of the employé does not in case of his death survive; but a new and different right of action is created-an action to recover damages for the wrongful death of the employé.

[4] As regards damages, the right of action in the employé (Lewis) involved only consequences of his injury; the new right of action involves only consequences of his death. These consequences are distinct and must not be confused. For example, the employé's pains resulting from the injuries were suffered by him, not by the beneficiaries; and the new right of action furnishes the beneficiaries no solatium for their distress of mind; their damages are measured by their pecuniary loss. Hulbert v. City of Topeka (C. C.) 34 Fed. 510, 513, 514, by the late Justice Brewer; Pennsylvania Railroad Co. v. Butler, 57 Pa. 335, 338, per Judge Sharswood; Perham v. Portland Electric Co., 33 Or. 458, 463, 464, 53 Pac. 14, 24, 40 L. R. A. 799, 72 Am. St. Rep. 730. The inherent difficulty of estimating the pecuniary value of a life is, of course, universally recognized; and it is not surprising that the numerous and familiar efforts of courts to lay down rules, with a view of securing practical uniformity in results, have not brought about the end so much to be desired. The problem necessarily ends in yielding much latitude to the jury in estimating damages in such cases. Thus, in Railroad Co. v. Barron, 72 U. S. 90, 18 L. Ed. 591, appreciating the nature of the task of estimating the damages that would have accrued to the injured person had he survived (in effect denying survival of that action, 72 U. S. 105), and likewise the damages that should be accorded to the beneficiaries in case of his death, Justice Nelson said (at page 106 of 72 U. S.) :

"There is difficulty in either case in getting at the pecuniary loss with precision or accuracy, more difficulty in the latter than in the former, but differing only in degree, and in both cases the result must be left to turn mainly upon the sound sense and deliberate judgment of the jury."

That case is much relied on by plaintiff. An Illinois statute was involved, and its important sections are quoted in the statement of the case. In Dist. of Col. v. Wilcox, 4 App. D. C. 119, it appears that the Barron Case was tried below before Justice Davis and Judge Drummond with a jury. The statute is still in force (Ill. Rev. Stat. of 1908, c. 70, p. 1184), except as to limit of recovery, and has frequently been construed by the Supreme Court of that state; but whether at all times in harmony with the decision in the Barron Case, or to what extent that decision may ultimately be applicable to this case, need not now be considered. As we understand counsel's chief reliance upon the Barron Case, it is to show that it is not necessary to prove in this case that the parents had a legal claim on the deceased for support. That case so rules and, in connection with the evidence, ought to be an answer to the issue discussed by counsel whether recovery should be limited to nominal damages. The evidence ruled out because of failure specifically to allege damages resulting to the parents from the death impresses us as being sufficient, if believed by the jury, to justify recovery for more than nominal damages.

[5] Thus, as respects damages, there was evidence tending to show: That the father was the owner of about 1,800 acres of land and the largest farmer in his neighborhood, raising corn, tobacco, wheat, hay, live stock, etc.; that he was 71 years of age and growing feeble; that he relied on deceased as the manager of this farm; that deceased was strong in physique and health, was well educated and possessed of good business qualifications and of aptitude for all kinds of machinery, including such as is used on a farm; that when he went away to engage in railroad work he stated that he would be back to gather the corn; that he was unmarried and lived with his father and mother as one of the family; that he raised crops of his own on the farm, and while he was not in receipt of fixed wages from his father, he was in the habit of receiving money from him when he desired it. It is safe to say that prima facie this presented a reasonable expectation of benefit from the continuance of the son's life, which, with proof of the value of such benefit, was susceptible of estimate of pecuniary loss to the father, as also to the mother, who was some eight years younger than the father. As illustrative of measure of damages where parents were interested as beneficiaries, see Franklin v. South Eastern Ry. Co., 3 H. & N. 212, 214; C. & E. I. R. R. Co. v. Beaver, 199 Ill. 34, 38, 65 N. E. 144; North Pennsylvania R. R. Co. v. Kirk, 90 Pa. 17; Hutchins v. St. Paul, Minn. & Manitoba

1 A number of the Illinois cases are referred to in Rhoads v. C. & A. R. R. Co., 227 Ill. 328, 337, 81 N. E. 371, 374 (11 L. R. A. [N. S.] 623, 10 Aħn. Cas. 111), the decision in which was made "with the Barron Case in mind," and still others in the more recent case of Dukeman v. C., C., C. & St. L. R. Co., 237 Ill. 104, 86 N. E. 712. See, also, Chicago N. W. R. Co. v. Swett, Admr., 45 Ill. 197, 204, 205, 92 Am. Dec. 206, decided shortly after the Barron Case.

197 F.-46

Ry. Co., 44 Minn. 5, 10, 46 N. W. 79. As to damages where widow and minor children were beneficiaries under the act now in question, see St. Louis & S. F. R. Co. v. Duke, 192 Fed. 309, 310, 112 C. C. A. 564. However, since the learned trial judge did not reach the point of instructing the jury, it is neither necessary nor proper as a reviewing court to attempt, in advance of a judgment on the merits, further to particularize as to evidence ruled out, or as to the elements that should be embraced in the measure of damages to be applied in the case. An example of this course may be seen in American R. R. Co. v. Birch, 224 U. S. 547, 32 Sup. Ct. 603, 56 L. Ed. 879; indeed, any other course might result in passing on matters that might never arise in the case.

[6] As to the necessity for amendment, it is to be observed, as set out in the statement, that plaintiff simply sues for the benefit of decedent's parents in the first and second counts, and as administrator in the third count. He does not allege anywhere in the declaration that the parents of the deceased suffered any pecuniary loss or injury through his death. The theory seems to have been that it was necessary to state only facts sufficient (1) to give the court jurisdiction; (2) to show the employment of the deceased and the negligence resulting in his death; (3) the names of the particular beneficiaries for whose benefit the suit is brought, and also the amount of damages sued for. It may be conceded, for present purposes, that if a widow and children had survived, and the action were maintained for their benefit, the law would presume substantial damages, and so dispense with the necessity of specific averment in that behalf. Dukeman v. C., C., C. & St. L. R. Co., 237 Ill. 109, 86 N. E. 712. In some jurisdictions even the relationship or connection of the beneficiaries is not deemed important in this respect. Pennsylvania Co. v. Coyer, Adm'x, 163 Ind. 631, 72 N. E. 875; Knife & Bar Co. v. Hathaway, 17 O. C. D. 750, 751, and cases there cited. But the decedent in this case was 24 years of age and unmarried at the time of his death, and we are convinced that the better practice is, at least as to such beneficiaries as are involved here, to require the nature of the damages claimed to have been suffered in consequence of the death to be averred. This results from the conclusion that the action which accrued to the deceased prior to his death did not survive. We have already pointed out that the third class, the "next of kin,” provided for in the act, is specifically limited to such as were "dependent upon such employé." This provision at once furnishes the token for identifying the beneficiaries and prescribes the condition of recovery. Is it to be said that such identification and condition need not be averred? Since it is not uncommon experience that a son past legal majority, as well as a minor son, may be an expense to his parents, it is more consonant with the reason disclosed by the act in respect of next of kin to hold that averment of pecuniary loss or injury is likewise necessary in regard to parents, although dependence, in the sense in which the term is used in the statute with reference to next of kin, is not essential to a recovery for the benefit of parents.

In Hurst v. Detroit City Railway, 84 Mich. 539, 547, 48 N. W. 44, it was held, concerning this class of cases generally, that:

"It is necessary to a recovery in such cases that the pecuniary loss be alleged in the declaration and that some proof be introduced to establish the facts so alleged."

See cases there cited; also, Regan v. Chicago, Milwaukee & St. Paul Ry., 51 Wis. 600, 601, 8 N. W. 292; Chicago, R. I. & P. R. Co. v. Young, 58 Neb. 683, 79 N. W. 556; Norfolk Nat. Bank v. Flynn, 58 Neb. 253, 78 N. W. 505; Winnt v. I. & G. N. R. R. Co., 74 Tex. 32, 36, 11 S. W. 907, 5 L. R. A. 172; Greenwood v. King, 82 Neb. 20, 21, 116 N. W. 1128; also, L. & N. Ry. Co. v. Summers, 125 Fed. 719, 722, 60 C. C. A. 487 (C. C. A. 6th Cir.), where it was held unnecessary to allege that the beneficiaries had theretofore received pecuniary benefit from the deceased; the material question being whether they would have been likely to receive any if his life had not been cut short.

Ordinarily, it would result that the assignments should be overruled and the judgment affirmed. But we infer from the record that the opportunity given to amend was declined through counsel's misapprehension of the trial court's statements touching the effect of averment in relation to pecuniary benefits and damages. The order therefore is that the judgment will be reversed and a new trial awarded (without costs), unless plaintiff through his counsel shall, within 60 days after the entering of this judgment, cause written notice to be filed with the clerk of this court that further opportunity to amend is declined; in that event the judgment will stand as affirmed, with costs.

JAMES GRIFFITH & SONS CO. v. BROOKS.

SAME v. BYLAND.

(Circuit Court of Appeals, Sixth Circuit.

Nos. 2,222, 2,223.

June 26, 1912.)

1. MASTER AND SERVANT (§ 286*)-INJURIES TO SERVANT-NEGLIGENCE-QUESTION FOR JURY.

Where a company which undertook to restore partially destroyed buildings engaged an independent contractor to do certain wrecking work in which a derrick was required, installed, and used by him, it owed a duty to its employés working on the premises under its orders to see that the derrick was properly installed, and to inspect it; and in al action against it by its employés for injuries received from the falling of the derrick through being improperly fastened, where a casual inspection would have disclosed the defect, the question of the company's negligence was for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1010-1050; Dec. Dig. § 286.*]

2. MASTER AND SERVANT (§ 286*)-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

In actions by employés for injuries from the falling of a derrick which was insecurely fastened, the question of whether the employer's

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

instruction to enter upon the premises was such an assurance of safety as relieved them from their duty to inspect the derrick, if such a duty existed, was for the jury.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 1001, 1006, 1010-1050; Dec. Dig. § 286.*]

In Error to the Circuit Court of the United States for the Western Division of the Southern District of Ohio.

Two cases, one by Henry L. Brooks, the other by Howard C. Byland, both against the James Griffith & Sons Company, a corporation. Judgments for plaintiffs, and defendant brings error. Judgments affirmed.

E. S. Aston, of Cincinnati, Ohio (Prescott Smith, on the brief), for plaintiff in error.

T. L. Michie, of Cincinnati, Ohio (B. F. Graziani and T. R. Snyder, on the brief), for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON, Circuit Judge. These two cases were by consent tried together in the court below. They were brought into this court upon separate records and heard and submitted as one cause, the evidence in both cases being the same except as to the injuries suffered by the defendants below, and the cases will be disposed of in one opinion. The plaintiff in error (hereinafter called company) is a corporation doing business as a building contractor, and the defendants in error (hereinafter called plaintiffs) were at the time in question in the employ of the company. The cases were for personal injuries, and each resulted in a verdict and judgment in favor of plaintiff.

[1] The company entered into contract with the owners of certain lots abutting on the north side of Fourth street, in Cincinnati, to restore two adjoining and partially destroyed buildings thereon. The buildings had been constructed six stories in height, each 25 feet in width by 100 feet in depth, and were separated by a brick wall 30 inches in thickness at the ground and tapering to a thickness of 17 inches at the top. At the date of the contract, the front walls of the buildings were standing and in good condition, except portions near the top of the sixth story; but a large part of the west wall of the west building and the center wall for some distance from its north end had been destroyed by fire and a windstorm, as also the interior of the west building and the north portion of the east building. The front portions of the six floors in the east building were in place and seemingly in safe condition; the sixth floor extending northwardly from the front about 30 feet and the other floors somewhat further for varying distances, the second between 45 and 50 feet, where plaintiffs received their injuries. It was found necessary to take down the upper portions of the front walls and

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes