Affirmed November 10, 1914.
On Rehearing.
(144 Pae. 569.)
A rehearing having been allowed in this case on the 7th day of July, the cause was reargued on July 28, and former opinion adhered to on November 10, 1914.
Aeeirmed on Rehearing.
For appellant there was a brief over the names of Messrs. Neff & Medley, Mr. Asa C. Hough, Messrs. *159Carey & Kerr and Mr. Harrison Allen, with an oral argument by Mr. Porter J. Neff.
For respondent there was a brief and an oral argument by Mr. Alfred E. Reames.
In Banc.
Mr. Justice Beandelivered the opinion of the court.
9. No new question is presented upon a reargument of this case. It is urged with a great deal of emphasis that the trial court erred in ruling upon the evidence and instructing the jury in regard to relations existing between the decedent, James McClaugherty, and his father, the plaintiff, and the habits and probable length of life of the beneficiary, as bearing upon the amount of damages recoverable. The court excluded evidence offered by the defendant concerning the habits of the plaintiff as to drinking. Such evidence must be considered as likely to prejudice the jury, or as an attempt to govern the amount of damages to be recovered by the probability of how the amount received as compensation for the alleged injury would be expended by the father. The Employers ’ Liability Act (Section 4), under certain conditions, gives a right of action to the father in case of the wrongful death caused by a failure to conform to the provisions of the act, “without any limit as to the amount of damages which may be awarded.” The statute does not base the right of action, nor the amount of recovery, upon the moral excellence or standing of either of the beneficiaries named in the act, nor make the conduct of such beneficiary a criterion either as to such right or amount of recovery. Such compensation should not be increased nor diminished on account of the character or habits of the person entitled to the same: Consolidated Stone *160Co. v. Morgan, 160 Ind. 241, 248 (66 N. E. 696). The evidence offered was properly excluded.
In the casé mentioned, under a statute providing that damages recovered for death caused by negligence must inure to the benefit of the widow and children, if any, testimony in regard to the habits and moral character of the widow of the decedent was held to have been properly excluded. The court carefully stated the issues made by the pleadings and instructed the jury in part as follows:
“The law provides that if an electric company, transmitting high voltage current, fails to comply with those requirements to which I shall call your attention, and death shall result from such failure, then the electric company shall be liable for the damages actually sustained, and there shall be no limit as to the amount of damages which can be recovered, excepting, of course, that the same cannot exceed the amount sued for, nor can they exceed the damages actually sustained. ’ ’
After fully explaining the provisions of the act, the court further instructed the jury as to the measure of damages, to the effect that, if they found for the plaintiff, he was entitled to recover the same amount James McClaugherty would have been entitled to recover, had he survived, but'received the injury “under the same circumstances, and in considering that question you will take into consideration his age at the time of receiving the injury, his probable expectancy of life, as shown by the evidence, and his earning capacity, and determine the amount, in case you shall find for the plaintiff.”
10. As we ‘understand the contention of learned counsel for the defendant, although upon this point they do not agree, the act in question is a “death” statute, and this is not a survival action. In so far *161as definitions are of any assistance, we would be inclined to tbe belief that tbe law partakes of tbe nature of both. As said by Mr. Justice Wolverton, in Hawkins v. Barber etc. Co. (D. C.), 202 Fed. 341:
“So far as it gives a right of action for the death, * * it is akin to Lord Campbell’s Act. * * This -action survives to the widow of the person killed, his lineal descendants, or adopted children,” etc.
We quote from the brief of one of defendant’s counsel:
‘ ‘ The Employers ’ Liability Act of 1910 is not a dependent statute, but a survival statute, and is akin to Section 34, L. O. L., and Section 380, L. O. L.”
As stated in our former opinion, the act authorizes but one action for an injury caused by a violation of the law in case of death. Where there is any one of the- beneficiaries named living and in a position to bring the action, it cannot be brought by the personal representative of the decedent, under Section 380, L. O. L. The act obviates the necessity and expense of the appointment of an administrator for the purpose of bringing the action. Nevertheless an action under Section 4 of the act takes the place of, and serves practically the same purpose as regards the amount of compensation to be recovered as, an action by an administrator under Section 380, L. O. L., save that there is no limit as to the amount. The proceeds of a judgment take a different direction, not going to the estate of the decedent, but direct to the beneficiary.
11. The instruction given to which exception is taken was in substance the same as the one approved in Carlson v. Oregon S. L. Co., 21 Or. 450 (28 Pac. 497), which was an action for an alleged wrongful death, brought by an administrator under Section 380, *162L. O. L. Under certain circumstances there may still be cases brought by a personal representative under Section 380, L. O. L. (Statts v. Twohy Bros., 61 Or. 602 (123 Pac. 909), and we do not think the Employers’ Liability Act indicates that a different general rule as to the measure of damages should be applied in one kind of a case from that applied in the other. If there should be, it would cause much confusion. As said by former Justice Bean in the Carlson case:
“There is an inherent difficulty in placing a pecuniary value upon human life; and in an action for the wrongful death of a person, the amount of damages recoverable must depend very much on the good sense and sound judgment of the jury, upon all the facts and circumstances of each particular case. The jury may make the estimate of damages themselves, from the facts proved, yet their estimate must be based upon the facts in evidence, and they should be properly instructed as to the law applicable to the facts before them”: Carlson v. Oregon S. L. Co., 21 Or. 450, 457 (28 Pac. 497, 499).
The actual loss, within the meaning of Section 4 of the Employers’ Liability Act, as applied to the facts in the case at bar, is the net amount which the decedent would probably have saved from his earnings by his skill and bodily labor, in his calling or profession, during the residue of his life, had he survived, taking into consideration his age, health, ability, habits of industry, sobriety and mental and physical skill, so far as they affect his capacity for earning money by rendering service to others or accumulating property. This is substantially as the trial court gave the law to the jury in a general way. It is not contended,upon this rehearing that the instructions requested as to the measure of damages were strictly accurate, or should *163have been given: Carlson v. Oregon S. L. Ry. Co., 21 Or. 450, 457 (28 Pac. 497, 499); Holmes v. Oregon & Cal. R. R. (D.C.), 6 Saw. 294 (5 Fed. 523). The damages are compensatory, not punitive or exemplary. Nothing can be allowed as a solace to wounded feelings or mental suffering. In fixing the amount under the very general and indefinite language of the statute, much must of necessity depend upon the judgment of the jury upon the facts in each particular case.-
After a careful examination of the record, and a consideration of the able argument and briefs of counsel, we do not find any reversible error in the record.
The judgment of the lower court will therefore be affirmed.
Affirmed. On Rehearing Former Opinion Approved.