I agree that the negligence complained of was actionable and that it does not fall within the exception contended for by appellant. I think the amount awarded, $10,000, is excessive and does not come within any recognized rule of law for computing damages. The judgment should be reduced. No one will claim that any money consideration can adequately compensate for the loss of the life of a child occasioned by a death under these circumstances, but the law knows of no other method of compensation and hence can award only this kind. Everyone knows that in the present state of society and under existing conditions, the average child, during the period of its minority, more often costs its parents in its education and bringing up more than it can or does earn for them. While the companionship and comfort of a child to its parents may be considered as one *Page 125 of the elements to be taken into account in fixing the damages for the wrongful causing of its death, the controlling element to be considered, under the law as I understand it, must in a large measure be based upon the pecuniary loss to its parents. No absolute standard of the amount of recovery can be fixed. The nearest analogy arises under the Workmen's Compensation Laws, C. S., sec. 6223 et seq. The award here allowed is so greatly in excess of the standard fixed by that law as to make one or the other appear ridiculous.
In the oral argument, respondents' counsel frankly admitted that the amount of the award was about three times what respondents would be willing to take if they could be assured of promptly receiving the smaller amount. The basis for the amount of recovery is not in any manner dependent upon the solvency or insolvency of the defendants. I conclude that the amount of the award is so clearly in excess of what the law contemplates, that its allowance is the result of an inflamed state of mind, due to the gross carelessness of an incompetent servant, for whose wrongful act appellants must suffer. No claim is made for punitive damages and the award must therefore rest solely upon the right of respondents to recover a monetary recompense equivalent to that sustained by the death of this child.
It is plain that the jury did not follow the court's instructions, numbers 35, 36 and 37, relating to the amount of recovery. In view of appellants being clearly liable for the amount that should have been awarded, substantial justice would be done if the excess be remitted to bring the award within the rules announced by the foregoing numbered instructions.
I am authorized to say that Mr. Justice Taylor concurs in the foregoing views. *Page 126