DISSENTING OPINION.
Eakin J.In expressing my dissatisfaction with two points in the opinion rendered in this case, I fully concede that it is in accordance with the greater weight of American'authorities. A dissent under such circumstances requires an apology. I hope to find it in my earnest conviction of the importance of the subject-matter, and of the duty which, each State owes to itself, as new conditions arise in the progress of law, to mould and adapt its jurisprudence to those conditions, so far as may be in harmony with old-established principles.
Ido not think, in the first place, that in actions sounding in damages, an excessive verdict should be cured by a remittitur, where there is nothing in the record, nor in the proof, to indicate with some tolerable certainty the limits of a correct verdict. To do so is, in effect, to substitute the private opinion of the judge for the judgment of the jury upon the facts, and deprives a defendant of the benefit of a fair trial by an impartial jury, because there has been an unfair one, which should be treated as a nullity. v Besides, an excessive verdict indicates either a want of due comprehension of the law and facts, or passion, or prejudice on the part of the jury, and the verdict should be set aside in toto, even as to the liability of defendant; not held good as to liability, and reformed as to amount, according to the judge’s sense of the fitness of things. This does not seem in accordance with the object of our Constitution in providing that “ the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy.” I can not think a defendant has had this right, by a trial which has resulted in a vicious verdict, so as to be left afterwards to the discretion of the judge.
I can not but suspect that the recent growth of this practice has sprung from the necessity which the courts have felt of some sword to cut the Gordian knot, in which they have become implicated, by endeavoring to reconcile the irreconcilable. That is, by holding, first, that in civil actions for death no damage can be recovered but such as are strictly compensatory in a pecuniary sense; and second, that there need be no proof whatever of such damages, beyond the facts of the killing, and the age, health and physical condition of the deceased, leaving the juries to assess damages'according to their inner-sense of the justice of the case. Under such circumstances it is not surprising, especially in suits against corporations, that plaintiffs sometimes distrust their good fortune in the extent of their success, and seek to make it surer for a less amount bj^ remittitur; nor, on the other hand, is it unnatural that the courts should resort to some such patriarchal adjustment, to escape the difficulties of each particular case. But I think this disturbs the harmony of law and interferes with the right of trial by jury.
Next, I think there should be proof of damages.
Suits of the nature now in question were unknown to the common law. They originated in England under what is commonly known as Lord Campbell’s Act, passed in 1846 (9 and 10 Viet., eh. 93), and which may be found in a note to Pierce on Pailways, on p. 386. This act has served as a model for similar acts in many American States, amongst others, our own. The general purpose of the act was to provide, for the benefit of surviving relatives and dependents, a right of action for the death of a person, which did not exist at common law. It provides no measure of damages whatever. The language is that “in every such action, the jury may give such damages as they may think proportionate to the injury resulting from- such death, to the parties respectively for whom, and for whose benefit, such action shall be brought.”
Before that act, and at common law, there had been no difficulty in determining when special damages need not be proved, or when such proof was necessary to obtain more than such as were nominal; even after the liability to the action should be clear. The distinction is indicated in the old case of Pleydel v. Earl of Dorchester, 7 Term Rep., 589, and is this, that where they are given for personal injuries, or as punitory, and for such matters as can not be ■estimated on a pecuniary basis, such as pain, distress, humiliation, etc., there, pecuniary damages need not be proved, because such things can not be estimated by a money standard. Verdicts are for consolation of the injured, and for examples to others in such cases. But where damages are regarded as property compensations for losses of property or values, they must be shown. And values, whether of property, services, time or expectations, were always provable as facts, not taken as opinions of experts. And this doctrine, outside of what may be called the Lord Campbell Act, prevails to this day.
Notwithstanding the generality and wide scope of the language of the act, the English courts, rvith a wise forecast, I think, of the danger to be apprehended from unrestrained juries, held, from the beginning, that the damages to be recovered should be strictly compensatory, for loss of the value, in a pecuniary sense, as near as it could be ascertained, of the life of the deceased to the beneficiary of the suit. That nothing could be recovered for solace, nor as an example, nor as compensation for distress of mind or heart. Nothing but cold value of lost aid, according to its nature, and in the market sense. It was recognized that such prospective values could not be exactly proved — that they could at best be only approximated. Hence the rule was adopted that the damages should be estimated by what should be shown to be a reasonable expectation of f uture pecuniary benefit. The earliest case I find is that of Blake v. Midland Railway Co., 18 Adolph. & El., N. S., p. 93. It overrules the instructions given the jury, at the assizes, where Parke, B., said, speaking of merely pecuniary compensation : “ I can not say to the jury that this is the only thing. I can only give them my notion of it, and they must settle it themselves.” The notion he had given was that the measure should be only pecuniary loss. In the Queen’s Bench it was held that he should not have left that to the jury, but have confined them to the strict pecuniary loss. This was followed, and the doctrine more distinctly settled, in the subsequent cases of Franklin v. S. Eastern R. W. Co., 3 Hurst & Nor., 211, and Duckworth v. Johnson, 4 ib., 653. It is now well established, as above stated, and has been universally followed, on this branch of the question, in America.
It would seem to follow, that the reasonable expectation of pecuniary benefit should be shown by some proof of the value of the services or aid to be expected, or that the common law rule would apply, and the damages should be nominal. It is taken out of the class of cases where the damages may be assessed according to the feelings of the jury. In all the English cases to which I have turned, I find that there was some proof of the value of the services lost, or expectations disappointed, and the damages have been fixed by such proof. It is a notable fact that in England the verdicts under Lord Campbell’s Act have been always very small.
In America it seems that the practice in some States has obtained of allowing verdicts for estimated damages, made by the jury on their own judgment and knowledge of affairs. The eases cited by the court are mostly in point, and the embarrassments which have resulted, has led to what I think an evil equally dangerous. I mean the practice of allowing remittiturs (which in some cases have even been suggested by the court), in order to mitigate the severity of damages. Thus, one disturbance of the harmony of the law compels another, and leads to confusion. I think it can not be said that judges have judicial knowledge of the clear net value of children to their parents during minority, any more than of the value of services rendered by an employ é in a suit upon a quantum meruit. The practice only shifts the responsibility from juries to judges, of estimating damages according to tbeir own inner sense of right, and under it the cardinal principle, that damages should be measured by a pecuniary standard alone, drifts away and is lost.
I would not venture a dissent from an opinion supported by so many precedents of other States, were it not comparatively a new question in judicature, and that I feel the importance to each State of deciding for itself, independently of others, in fixing its jurisprudence for the future. I am supported, I think, by the ordinary practice in the courts, of proving or attempting to prove such values, as was done in this case upon the first trial. It seems to have been an afterthought on the second trial to omit all such proof whatever. I think it is the universal practice in England to make such proof, as illustrated in the recent case of Rowley v. London and N. W. Ry., Law Reports, 8 Exchequer 221; S. C. English Reports, with Moak’s Notes, vol. 6, p. 293. Mr. Pierce, in his work on Railroads, whilst laying down the rule as followed in this case, says, nevertheless, p. 895, that proof of actual pecuniary loss has been required to sustain a verdict for more than nominal damages, citing cases in Illinois and Newr York, which he construes. I think, too, that the view’s I have expressed are fully sustained by the Supreme Court of Pennsylvania, in the cases of Penn. R. Co. v. Zehe, et ux., 33 St. Rep., 318; Same v. Adams, 55 St. Rep., 499, and especially in Same v. Keller, 67 St. Rep., 300.
Our Constitution forbids the Legislature from passing any act “to limit the amount to be recovered for injuries to persons or property.” If the courts can not limit them by proof, where merely compensatory, and are not careful in supervising them in cases where they may be allowable for solace, or as exemplary, so as to see that they are not the result of passion or prejudice, then the condition of corporations will become too precarious for the investment of capital. They are useful to the community, but with the utmost care they can not avoid the negligence of employés. I doubt whether they could long withstand a succession of verdicts reached by juries from their pirivate estimates of justice, upon mere proof of negligence and death, without any proof of the pecuniary value of deceased to the surviving relative.
I do not think it impossible or very difficult to show approximately (and that is enough) the ordinary value of the services of minors at different ages, as now prevailing, and upon the supposition that they should live and existing values continue, together with the ordinary expense, ;per contra, of clothing, feeding and educating them. Of course it can not be done exactly, but the principle adopted as to the measure of damages, seems to require that it should be done as nearly and fairly as possible. It is not well to escape the difficulty by practical abnegation of the principle, and it amounts to that when juries are instructed that they can only find a verdict for compensation, without any proof before them to enable the court to determine whether or not they have paid any regard to the instructions. Juries are not remarkable for fidelity to abstract advice in conflict with their own view's of right.
I think the verdict wms excessive, and that the remittitur should not have been' allow'ed to cure it; and that a new trial should be ordered. I would do this, not from any disrespect of the line of authorities my associates have followed, but because I think it most consonant with principle, in accordance with English practice, not unsupported by respectable American authority, and best in its results for the citizens of-the State.