This action was brought under the act entitled “ An act requiring compensation for causing death by wrongful act, neglect, or default,” approved Eeb. 12th, 1853. (Scates' Comp. 422.) A full exposition of this statute, its object and purposes, was given by this court in the case of the City of Chicago v. Major, 18 Ill. 349. It is there said the action is to be brought by the executor or administrator of the deceased, and is not limited to those cases where he leaves a widow, and any money recovered in such action is not to be treated as a part of the estate of the deceased, creditors not deriving any benefit from it; that it is to be distributed among those to whom the personal estate would descend in the absence of a will, according to the statute of descents. And further, that the damages can only be for the pecuniary loss, not for the bereavement.
The first objection made by the appellants is as to the sufficiency of the declaration, in this, that it is not averred that the railroad owned by the defendants and used by them, was used in the county and State in which the action was brought.
This would be a good objection if presented on demurrer, but after verdict it cannot avail. A fact of that description wil sustain a verdict, be considered as proved or admitted.
The next objection is, that it is nowhere alleged in the declaration , that the deceased left a widow or next of kin. The second section of the statute provides that every such action shall be brought by and in the names of the personal representatives of such deceased person; and the amount recovered in every such action, shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife or next of kin of such deceased person, not exceeding the sum of five thousand dollars. (Scales’ Comp. 422.) Taking the exposition of this statute by this court-in Major’s case as the correct view of it, we are satisfied, before a party suing for these damages, can be allowed to recover, it must be alleged in the declaration, and proved, that the deceased left a widow or next of kin, to whom the damages could be distributed. The statute evidently intends to give no damages for the injury received by the deceased, but refers, wholly, to the pecuniary loss which his wife and next of kin may bo proved to have sustained, and the damages are not assets to be applied to the general necessities of the estate, but belong exclusively to the widow and next of kin, to whom they are to be distributed. The statute makes their pecuniary loss the sole measure of damages. The satisfaction of that loss, is therefore, the sole purpose for which an action can be instituted, there being nothing to be allowed for the bereavement, for solatium. This beihg so, the facts that there are persons entitled by law to claim this indemnity, and that they have sustained a loss justifying their claim, must be proved on the trial, and therefore must be averred in the declaration, as much so as the death of the party and the wrongful act or neglect of the defendant. We are satisfied there is no right of action under this statute except upon the basis of a pecuniary damage sustained by the widow and next of kin of the deceased.
Our statute is a copy of ”the statute of New York, enacted in 1847, and the courts of that State hold, as we do here, that the only correct basis for the action is the pecuniary damage sustained by the widow and next of kin, that the damages are limited to an indemnity for such a loss, and that facts showing such a loss must be proved and must be averred in the complaint, or the foundation of the action fails. Per Hoffman, J., Safford v. Drew, 3 Duer, 635.
The statute of New York is substantially a copy of the first two sections of 9th and 10th Victoria, chap. 93, enacted in August, 1846, and in the first case which arose under that act, (Blake v. The Midland Railway Company, 10 Law and Eq. Rep. 439,) it was held that the measure of damages was not the loss or suffering of the deceased, but the injury resulting to his family from his death, and that the manner in which the pecuniary loss to the persons for whom the action is brought arose, must be alleged. We remark here, that the second section of 9th and 10th Victoria, ch. 93, provides that the action shall be for the benefit of the wife, husband, parent and child of the person whose death has been caused by neglect, etc. This case shows that the rule governing the measure of damages is the pecuniary loss to the family of the deceased, and forms the exclusive ground of the action. In examining the declaration, we find no one averment under which this proof could be made. It is then, substantially defective, and advantage can be taken of it in this court. On the trial the plaintiff tacitly admitted the necessity of the averment of a widow and next of kin, by proof of those facts. We may readily imagine many cases, where persons have been for years disconnected from, and isolated from their family connections, and remained unknown to their kindred, and who, in no reasonable probability, would ever return to, or afford any support to their families or relatives. In case of their death, there would be no next of kin who could sustain any pecuniary loss by their death, because they could have derived no pecuniary benefit from a continuance of their lives.
In answer to this objection, it is urged by appellees’ counsel, that there were no such averments in the declaration in Major's case, and that judgment was rendered upon that record. The reply to this is, this objection was not made in that case at any time, nor the attention of the court called to the point. The case was decided on wholly different grounds. For want of a suEcient declaration, the judgment must be reversed, and the cause remanded, with leave to amend the declaration, and for further proceedings in the cause.
Judgment reversed.