ON REHEARING.
Bartholomew, C. J.There is one question involved in this case that was not disposed of in the original opinion. It was not mentioned in oral argument upon the first hearing, and, while it was briefly treated in respondent’s brief, yet we overlooked it, and hence, on respondent’s petition, we ordered a reargument.
It is urged that the complaint contains no specific allegations showing'that this plaintiff or the heirs of.Jacob C. Haug have suffered any pecuniary loss or damage by reason of his death, and that only actual pecuniary damages can be recovered in an action of this character, and that the law does not presume damages from the single fact of death; hence, unless the complaint contains specific averments of damages, it fails to state a cause of action. It will be noticed that the cause of action in this case, if any there be, accrued on February 3, 1895. The Compiled Laws of 1887 were then in force. The action was not commenced until 1897. The Revised Codes of 1895 were then in force. The cause of action here sought to be’ enforced was unknown to the common law, and hence must depend entirely upon statutory provisions, and the provisions giving this right of action, as set forth in section 5499 of the Compiled Laws, differ somewhat fron^gk, provisions giving *32the right of action, as set forth in section 5974, Revised Codes. We are not prepared, however, to say that the rule of pleading would be different under the one statute or the other. But, if there be a difference in liability under the two statutes, then, clearly, under the provisions of section 5142, Rev. Codes, this action must be regarded as brought under the provisions of section 5499, Comp. Laws, which was in force when the cause of action accrued. That section reads: “If the life of any person* or persons is lost or destroyed by the neglect, carelessness or unskillfulness of another person or persons, company or companies, corporation or corporations, their or his agents, servants or employees, then the widow, heir, or personal representatives of the deceased shall have the right to sue such person or persons, company or companies, corporation or corporations, and recover damages for the loss or destruction'of the life aforesaid.” That was the modified form, in force in this jurisdiction, of Lord Campbell’s act, passed in 1846, which first brought causes of action of this character into existence. Statutes based upon Lord Campbell’s act are now inforce in nearly or quite all of the states in this Union. This statute has been often before the Courts, and this very question of pleading which we are now considering has been repeatedly passed upon. The question is new in this jurisdiction, and, when we consult the adjudged cases, we find them to be in some confusion, and perhaps some conflict. Difference in phraseology may account in part for the diversity of opinion among judges, but we think there are cases that cannot be reconciled. Upon one point the cases are united, and that is that the only damages recoverable in this action are for the pecuniary loss. Nothing can be recovered for the loss of society or for damages in the way of solatium. But the cleavage in the authorities arises upon the question of the presumption of any pecuniary damages arising from the fact of death.
The first case in England wherein the point arose is Chapman v. Rothwell, El., Bl. & El. 168. In that case the declaration was filed by the husband, as administrator, to recover damages for the death of his wife. The allegations simply set forth the facts showing the negligence of defendant resulting in the injury and death of the wife, and added: “And the plaintiff, as administrator as aforesaid, claims 200 pounds.” There was a demurrer to the declaration. Lord Campbell, the author of the act giving the right of action, was then chief justice. Upon the argument of the demurrer the attorney for the defendant made the statement that “no pecuniary injury is shown to have accrued to the plaintiff.” Lord Campbell replied: “The damages might be proved by evidence under this declaration.” And Crompton, J., said: “Section 1 appears to contemplate giving damages whenever the party injured, could have recovered them, whether nominal or more;” and the point was overruled. It may be that this, ruling is to some extent weakened by the language of Baron Pollock in the subsequent case *33of Duckworth v. Johnson, 4 Hurl. & N. 653, where he says: “If there were no damages the action is not maintainable. It appears to me that it was intended by the act to give compensation for damages sustained, and not to enable persons to sue in respect to some imaginary damages, and so punish those who are guilty of negligence by making them pay costs.” But this language is not necessarily at variance with the decision in Chapman v. Rothwell, and ought not to be held to establish a diffent rule of pleading. It would therefore seem that in England there need be no special allegations showing damages.
In an early case under the New York statute (Safford v. Drew, 3 Duer, 627), Justice Duet held that it was necessary, under the statute, to show the existence of parties who were entitled to the 'benefit of the action, and that such parties had suffered pecuniary loss, and said: “These facts are in their nature material and issuable, and in actions like the present one are, therefore, in my judgment, just as necessary to be proved upon the trial, and, consequently, to be averred in the complaint, as the death of the person injured, and the wrongful act or neglect of defendant as the primary cause.” If the able justice intended to say that the complaint must contain specific allegations as to the character of, and reasons for, the damage, then, as we shall see, the case has not been followed in New York. But in Regan v. Railroad Co., 51 Wis. 599, 8 N. W. Rep. 292, it was held that the complaint should allege facts showing that a present or prospective pecuniary loss or injury had resulted to the relatives in whose behalf the action was brought, and cited the case in 3 Duer in support of the position. The same rule of pleading under this statute has been adopted in Michigan. Hurst v. Railway Co., 84 Mich. 539, 48 N. W. Rep. 44. It should be noted in this case, however, that the action was brought to recover damages caused by the death of an infant less than two years of age. A general allegation of damage was held bad in Charlebois v. Railroad Co., 91 Mich. 59, 51 N. W. Rep. 812, where the action was to recover damages for the death of an infant eight years of age. In Texas, also, it is held that the doctrine of nominal damages does not apply. McGowan v. Railway Co., 85 Tex. 289, 20 S. W. Rep. 80. In that case it was sought to recover damages for the death of a wife. We do not understand the Supreme Coürt of Texas to hold that a general allegation of damages is insufficient as a matter of pleading. But it does hold that actual damages must be shown. It is perhaps proper, while the cases are not clear upon the subject, to place Nebraska among the states which require the damages to be specially pleaded. See Electric Co. v. Laughlin, 45 Neb. 390, 63 N. W. Rep. 941; Orgall v. Railway Co., 64 N. W. Rep. 450. And perhaps, also South Dakota. Belding v. Railway Co., 53 N. W. Rep. 750
On the other hand, very eminent Courts have held that a general *34allegation of damages was sufficient, under these statutes; that special allegation of damages were not required; and that nominal damages might be recovered. Railway Co. v. Shannon, 43 Ill. 338; Railway Co. v. Swett, 45 Ill. 197; City of Chicago v. Scholten, 75 Ill. 468; Gorham v. Railway Co., 23 Hun. 449; Lehman v. City of Brooklyn, 29 Barb. 234; Ihl v. Railroad Co., 47 N. Y. 317; Oldfield v. Railway Co., 14 N. Y. 310; Railway Co. v. Weber, 33 Kan. 543, 6 Pac. Rep. 877; Johnston v. Railroad Co., 7 Ohio St. 337; Nagel v. Railroad Co., 10 Am. & Eng. R. Cas. 702; Serensen v. Railroad Co., 45 Fed. 407; Kenney v. Railroad Co., 49 Hun. 535, 2 N. Y. Supp: 512; Atrops v. Costello, 8 Wash. 149, 35 Pac. Rep. 620; Barnum v. Railroad Co., 30 Minn. 461, 16 N. W. Rep. 364.
In Korrady v. Railway Co., 131 Ind. 261, 29 N. E. Rep. 1069, Chief Justice Elliot, speaking for the full bench, said: “The appellee’s contention that the complaint is bad because it does not specifically show that actual damages were sustained by the widow and infant children of the appellant’s intestate cannot prevail. Where a complaint charges a railroad company with wrongfully killing a person, shows that the person so killed was free from contributory-fault, and that he left a widow and infant children surviving him, a cause of action is stated, although it is not directly alleged that the surviving kinsfolk sustained actual damages. The legal presumption is that infant children are entitled to the benefit of the father’s services, and that the wife is entitled to the benefit of the services and assistance of her husband, and that such services are of value to her and her children.”
These citations are sufficient to show that the decided weight of authority is opposed to the rule requiring a specific allegation of damages in order to constitute a good complaint. It is true that some of the cases go upon the theory that, when the wrongful act of the defendant is once established as the proximate cause of the death, the statute then bases a cause of action upon such wrong, and will presume nominal damages. But the more general holding is to the effect that, the wrongful act being once established as the cause of death, the decedent being free from fault, the plaintiff may, under a general allegation of damages, recover all such damages, within the amount claimed, as are ordinarily and usually sustained, from the loss of such life, by those standing in the relation to the decedent sustained by those in whose interest the suit is brought. This holding, we think, violates no rule of code pleading. The defendant is -always sufficiently advised as to what he must meet on the question of damages. Any facts or circumstances tending to reduce the pecuniary value of the life destroyed may always be shown. The case of Atrops v. Costello, supra, well illustrates this principle.
There is a distinction noticed in some of the cases that we think is founded upon reason. When the party in whose interest the suit is brought sustained such' relations to the deceased that he *35had the legal right to demand the services of the deceased, or to demand support and maintentnce at the hands of the deceased, then substantial pecuniary damages will be presumed; while if recovery is sought by a collateral relative, or one having no such legal claim, and who was not in fact dependent upon the deceased, the presumption of substantial damages may not be indulged. This is illustrated in City of Chicago v. Scholten, 75 Ill. 468; Coal Co. v. Hood, 77 Ill. 68; Winnt v. Railway Co., 74 Tex. 32, 11 S. W. Rep. 907.
(77 N. W. Rep. 97.)In this case we make our holding no broader than the facts require. The complaint discloses that the deceased left a widow and minor children of tender years. There is a general allegation of damages, but no facts pleaded showing in what such damages consist. The wife and minor children were entitled by law to demand support and maintenance at the hands of the husband and father. When, by the wrongful act of the defendant, they are deprived of that husband and father, the law presumes pecuniary damages, and particular facts showing damages need not be pleaded.
Our judgment of reversal must stand.
All concur.