the invention, and all the circumstances of the case; but that an inventor was bound to act with sincerity and good faith towards the public; so that if he unnecessarily deferred his application for a patent and suffered his invention to be used, excepting for the purposes

above mentioned, and beyond what he had reason to believe was necessary for these purposes, his patent would be void." A verdict being rendered for the plaintiff, the Court, on motion for a new trial, held the instructions to be correct, and that the patent was valid.

DALTON v. THE SOTUH-EASTERN RAILWAY COMPANY.

May 8.

In an action founded upon Lord Campbell's Act, 9 & 10 Vict. c. 93, for injury resulting from death, legal liability alone is not the test of injury in respect of which damages may be recovered; but the reasonable expectation of pecuniary advantage by the relation remaining alive may be taken into account by the jury; and damages may be given in respect of that expectation being disappointed, and the probable pecuniary loss thereby occasioned. Therefore, in an action by a father for injury resulting from the death of his son through the negligence of the servants of a railway company, it appeared that the son, who was twentyseven years of age, and unmarried, but living away from his parents, had for the last seven or eight years been in the habit of visiting them once a fortnight, and of taking them on those occasions presents of tea, sugar, and other provisions, besides money, amounting in the whole to about 201. a year:-Held, that the jury were warranted in inferring that the father had such a reasonable expectation of pecuniary benefit from the continuance of his son's life as to entitle him to recover damages under the statute.

But held, that it was not competent to the jury to award him compensation for the expenses incurred by him for his son's funeral or for family mourning.

THIS was an action brought by the plaintiff, as administrator of his deceased son, to recover damages under Lord Campbell's Act, 9 & 10 Vict. c. 93, by reason of the deceased having been accidentally killed through the negligence of the defendants' servants.

The declaration stated, that, before and at the time of the committing of the grievance thereinafter mentioned, the defendants were common carriers of passengers for reward by trains of carriages by a certain railway, and, before the committing of the grievance thereinafter mentioned, the said intestate, at the request of the defendants, became, and at the time of the committing of the said grievance, at their said request, was, a passenger in a certain train of carriages, to be by the defendants carried, for reward to them in that behalf, by the said train of carriages by and along the said railway from one place to another place; and that, before and at the time of the committing of the said grievance, the defendants were possessed of a *certain other train of carriages,

and were causing the same to proceed along the said railway, [*297 and had the management, government, and direction thereof upon the said railway; yet that the defendants, by their servants in that behalf, took so little and such bad care in and about the carrying of the deceased as aforesaid by the first-mentioned train, and in and about the management, government, and direction of the said secondly-mentioned train, that, by reason of the said carelessness and negligence, the said secondlymentioned train came into violent collision with the first-mentioned train, and greatly crushed and broke the carriages whereof it consisted, and by means thereof the said deceased was killed, leaving him surviving

his father, the plaintiff, and his mother, Sarah Dalton, for whose benefit this action is brought; and, after his death, administration of all and singular the goods, chattels, and credits which were of the deceased at the time of his death, in due form of law was granted by the Right Reverend Father in God, John Bird, by Divine Providence Archbishop of Canterbury, Primate of all England, and Metropolitan: And the plaintiff, as administrator as aforesaid, claimed 6007.

The defendants pleaded not guilty; whereupon issue was joined. The cause was tried before Byles, J., at the sittings in Middlesex after last Hilary Term. The action was brought by the plaintiff, as administrator, under the 9 & 10 Vict. c. 93, to recover damages against the defendants for the loss sustained by himself and his wife through the death of their son, who was accidentally killed whilst a passenger in a train on the South Eastern Railway, which on the 28th of June last, through the negligence of the company's servants, came into collision with another train on the defendants' line between the Blackheath and Lewisham stations.

*298] *It was admitted on the part of the defendants that the death of Thomas Dalton was the consequence of negligence on the part of their servants, and that that negligence was of such a character as would have enabled the deceased himself to recover damages for any injury short of death which might have resulted to him thereby but it was insisted that the plaintiff and his wife had sustained no such injury by the death of their son as to enable them to maintain an action under the statute.

As to this the facts were these:-The deceased, who was about twenty-seven years of age, and unmarried, resided in London, where he worked as a pianoforte maker, earning about 31. a week. For the last seven or eight years he had been in the habit of visiting his father and mother, labouring people at Dartford, once a fortnight, and on these occasions took them presents of tea, coffee, sugar, meat, &c., which with occasional donations of money averaged about 207. a year.

On the part of the company, it was submitted, that, under this statute, the plaintiff could only recover in respect of the loss of some legal right. On the other hand, it was submitted that it was enough that the plaintiff should have had a reasonable expectation of a continuance of pecuniary advantage from the remaining alive of his son: and, in addition to compensation for that loss, the plaintiff claimed 107. which he had expended upon his son's funeral, and also the cost of providing himself and wife with mourning.

The learned judge told the jury, that, in his opinion, the plaintiff and his wife had sustained such a pecuniary injury from the death of their son as to entitle them to recover damages under the statute: and he directed them to find separately the sums they thought the plaintiff entitled to in respect of the mourning and the funeral expenses.

*299] *The jury accordingly returned a verdict for the plaintiff,— assessing the damages as follows:-801. for the plaintiff, and 401. for his wife, in respect of the pecuniary loss sustained by their son's death; 107. for the funeral; and 15l. for mourning and leave was reserved to the defendants to move to enter a nonsuit, if the court should be of opinion that there was no evidence of such damage as would entitle the plaintiff to maintain an action under the statute, or to

reduce the damages by deducting the sums allowed for funeral expenses and mourning.

Hugh Hill, Q. C., having on a former day in this term obtained a rule nisi,

Montagu Chambers and Needham showed cause.-The first question is whether the plaintiff has sustained such an injury from the death of his son as to entitle him to maintain the action. Now, the act is intituled "An act for compensating the families of persons killed by accidents." The first section enacts, "that, whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." And the 2d section enacts "that every such action shall be for the benefit of the wife, husband, parent (which by the interpretation clause, s. 5, includes father and mother, and grandfather and grandmother, and stepfather and stepmother), and child of the *person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of [*300 the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought.' Can it be said that "injury" did not result to the parents of this young man from his death? He was not residing with them, it is true; but he was constantly visiting them, and materially contributing to their support. [CROWDER, J.-It will be said on the other side that many circumstances might have occurred to induce the son to discontinue these contributions.] The court will rather contemplate the continued performance of a duty dictated alike by nature, morality, and religion. The damage can only be measured by the state of facts at the time, and the probability of their continuance. It has already been decided in many cases that compensation may be awarded for wounded feelings in addition to pecuniary damage. [BYLES, J.— Except as to the 107. and 157., this point hardly arises. There is no complaint of the direction. The law casts upon a son a legal obligation to maintain his parents. The plaintiff therefore has clearly sustained some damage by his son's death; and the quantum is not in question.] The 7th section of the 43 Eliz. c. 2 enacts that "the father and grandfather, and the mother and grandmother, and the children of every poor,. old, blind, lame, and impotent person, or other poor person not able to work, being of sufficient ability, shall, at their own charges, relieve and maintain every such poor person in that manner and according to that rate as by the justices of the peace of that county where such sufficient. persons dwell, or the greater number of them, at their general quarter sessions, shall be assessed; upon pain that *every one of them [*301 shall forfeit 20s. for every month which they shall fail therein." Incidentally, it is true, that is in aid of the parish; yet it is a duty which is distinctly fixed upon the parent or child. If the compensation under this statute were to be limited by the strict legal rights and VOL. IV.-13

liabilities of the parties, a very small class of persons indeed would be benefited by it. Take the case of a man having a son at college, or studying for a profession, to whom an allowance is made suitable to his station, could it be said, that, because the father was under no legal obligation to continue the allowance, the son would sustain no pecuniary loss by his death? It is enough if he is deprived of those just expectations of pecuniary aid which but for the death he would have a right to entertain. In the case of an action for the seduction of a daughter, the legal foundation of the action is the service of the daughter: but it never was suggested that the father could not recover damages because the daughter was under no legal liability to render service. The case of Waters v. Towers, 8 Exch. 401,† strongly supports this argument. That was an action for a breach of contract in not fitting certain mill-gearing in a workmanlike manner, and for not completing it within a reasonable time; the declaration alleging for special damage that the plaintiffs lost the benefit of a certain contract. It appeared, that, in consequence of the defendants' breach of their contract, the plaintiffs, who carried on the business of bobbin-spinners in Cumberland, were unable to fulfil a (verbal) contract which they had made with two of the members of their firm, who carried on a separate business in Manchester, for the supply of goods as alleged in the declaration. On behalf of the defendants, it was submitted that the loss of profit upon that transaction was too remote a consequence to be the subject of special damage; and that, **302] even if that *were not so, still the plaintiffs could not recover any damages in respect of it, by reason of the community of the parties, and also that the contract was invalid by the 17th section of the statute of frauds, 29 Car. 2, c. 3, the value of the goods agreed to be supplied being above 10l. A verdict was taken for the plaintiffs for 147., with leave to move to increase it by 1137., the estimated profit which would have accrued to the plaintiffs, if their contract for the supply of the bobbins had been fulfilled. Upon cause being shown against a rule obtained for that purpose, it was submitted that the contract was not binding on the parties, inasmuch as no action at law could be maintained by the three plaintiffs against two of themselves, and also because the contract was void by the statute of frauds. But Alderson, B., said: "If a person undertakes to make a certain article for another, and to deliver it to him on a particular day, but fails to do so until a year afterwards, it would be most unreasonable that the latter should not recover any damage because. the contract was not in writing. The existence of a contract is evidence of the probable amount of loss sustained. Suppose the plaintiffs had said, 'We should have made such and such a contract, if the defendants had performed theirs,' and the jury believed that the plaintiffs would have done so, that would surely have been evidence of the amount of loss occasioned by the defendants' breach of contract." And the rule was made absolute. [Aspland, Amicus Curiæ, mentioned a case of Bramall v. Lees, tried before Crompton, J., at Liverpool, at the Spring Assizes, in 1857, where the father of a child twelve years of age recovered a verdict for 15l. against a druggist, who had sent laudanum instead of tincture of rhubarb, and so caused the child's death; it appearing that the child was at the time incapable of earning anything towards its support, it was insisted on the *part of the defendant that the parents sustained no pecuniary injury

*303]

from its death, and a rule nisi was granted to set aside the verdict, but, being discouraged by the court, it was ultimately allowed to drop.(a) Then, as to the funeral expenses and mourning,-it was incumbent on the plaintiff to bury his son decently, and reasonable to put on mourning for his loss. These expenses, therefore, as much constituted a consequential damage as if the son had sustained an injury short of death, and the plaintiff had carried him home and incurred expense in medical and other attendance upon him. [BYLES, J.-It may be said on the other side that the duty of burying the body properly devolved upon the parish officers, under the 7 & 8 Vict. c. 101, s. 31.]

Petersdorf, in support of the rule.-This case presents a question of no ordinary difficulty. Since the passing of the statute, no intelligible rule has been laid down for the computation of damages: and it remains for this court, or for the Court of Exchequer in a similar case now pending before it, of Franklin v. The South Eastern Railway Company, arising out of the same accident,-to say what is the legitimate interpretation of the act. Is the test for the measure of damages to be the calculable or ascertainable pecuniary loss which the survivor has sustained, as was suggested by Pollock, C. B., in Gillard v. The Lancashire and Yorkshire Railway Company, 12 Law Times 356? Or is the test to be the hope or expectation of benefit from the continuance of the life of the deceased? If the former is to prevail, this rule must be made absolute. If the latter, see the incalculable number of degrees of which that expectation may consist,-from almost *absolute

certainty to the extreme of doubt. [CROWDER, J.-Why would [*304

not reasonable expectation do,-that which a reasonable man might fairly expect?] Who is to say what is reasonable expectation here? [CROWDER, J.-The jury, perhaps.] In Blake v. The Midland Railway Company, 18 Q. B. 93 (E. C. L. R. vol. 83), it was held, that, in an action under this statute, by the wife, husband, parent, or child, of a person killed by misfeasance, the jury, in estimating the damages, cannot take into consideration mental suffering or loss of society, but must give compensation for pecuniary loss only. Coleridge, J., at the conclusion of the judgment in that case, says: "We are of opinion that the learned judge at the trial ought more explicitly to have told the jury, that, in assessing the damages, they could not take into their consideration the mental sufferings of the plaintiff for the loss of her husband; and that, as the damages certainly exceeded any loss sustained by her admitting of a pecuniary estimate, they must be considered excessive." [BYLES, J. -To entitle you to succeed on the first part of your rule, you must show that the plaintiff was entitled to no damages at all.] The question is, has the plaintiff, through the act of the defendants' servants, sustained any calculable pecuniary loss? [CROWDER, J.-Can any reasonable being doubt that this plaintiff had a pecuniary interest in his son's life? For seven or eight years he had been in the regular habit of contributing to the support of his parents. It is true he might not always be of ability to continue this: but the same uncertainty exists in all cases where the loss is of an income arising from personal exertions.] There is little or no analogy between earnings and accidental or occasional gifts like these. The statute contemplates a "recompense" for the loss

(a) See 29 Law Times 82, 111, 166.