delivered the following dissenting opinion:
I dissent from so much of the opinion in this case as holds that any portion of the earnings of deceased necessary for his own support should be deducted from the amount the jury should be allowed to assess as damages for the destruction of his power to earn money. The portion of the opinion from which I particularly desire to dissent reads as follows: *485the money earned by him to his own support. The true measure of damages is not the capacity of the deceased to earn money, but is such a sum as will reasonably compensate his estate for the destruction of his power to earn money; and, in arriving at the amount of this sum, the jury are authorized to consider all the testimony in the case bearing upon this question. This question has been so thoroughly and carefully considered by this court in Railroad Co. v. Graham’s Admr., 34 S. W., 229; Railroad Co. v. Kelley’s Admx., 100 Ky. 421, and Railway Co. v. Lang’s Admr., 100 Ky. 221, that any further elaboration of this idea is unnecessary.”
*484“In the fifth instruction the court said: Tf the jury find for the plaintiff, the measure of damages will be the capacity of deceased to earn money, coupled with his expectation of life.’ This instruction is in direct conflict with a number of recent adjudications of this court. Under it, all that was necessary for the jury to do to arrive at a verdict was to determine how much deceased was capable of earning in a year, and multiply that amount by his expectation of life. This entirely leaves out of view the fact that deceased necessarily applied a certain proportion of
*485It seems to me that the rule announced in the opinion supra is in conflict with section 241 of the Constitution, which reads as follows:
“Whenever the death of a person shall result from an injury inflicted by negligence, or wrongful act, then in every such case damages may be recovered for such death from corporations and persons so causing the same. . .”
And also in conflict with the spirit of section 54 of the Constitution, which reads as follows:
“The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”
The rule announced in the majority opinion in this case would always prevent the recovery for any damages where the power of the decedent to earn money was not greater than the amount necessary to defray his expenses of living; or in other words to furnish him with food, raiment and shelter, and pay his taxes; and would certainly defeat *486the recovery in all cases where the decedent was not able, or his capacity was not sufficient to earn more money than was necessary to furnish him with food, raiment and shelter. Such a rule would, in a large number of cases, defeat any recovery for damages for the killing of a wife, because the capacity of the wife to earn money in excess of what it would cost to furnish her with food, raiment and shelter could not be shown for the reason it would not in fact exist; and the same may be said in regard to tire killing of infants, for after deducting the cost of their necessary nurture and their support after maturity their power to earn money would rarely exceed the expenses aforesaid.
Can it be that the organic law of the land intended that the husband should recover of tic1 party causing the death of his wife only so much money as she was able to earn over and above what it was necessary to support her? Or can it be said that such a rule should be applied to the destruction of the life of an infant?
Under the rule announced in the majority opinion, it is manifest that no recovery could be had for the destruction of the life of an old and infirm person, because it is manifest, and must have been obvious to the framers of the Constitution that such person could not earn more money than was necessary to support them. If the framers of the Constitution had intended that the net earnings of the decedent should be the criterion of recovery, it seems clear to me that they would have so expressed it, but the expression used is “damages,” and to my mind that can only mean such damages as the party to be affected thereby *487sustained. In the case of husband or wife the damages include not only the power to earn money, but damages incident to the deprivation of the society of the life-partner, as well as the satisfaction of having some one vitally interested in the welfare of the family to look after and care for its interest.
I know of no case where the party suing for personal injuries was restricted in the right of recovery to only such net sum of money as they could earn over and above their expenses. Not only so, but such persons have been allowed to recover for mental and physical suffering, as well as the necessary expenses incident to medical treatment. Indeed, I am not aware of any case in which the damages for wrongs inflicted are restricted as is proposed in the majority opinion in this case. So far as I am advised no such doctrine was ever announced by this court prior to the Lang case, nor by any circuit court of this State.
For the reasons indicated, and for many other reasons not now deemed necessary to state, I feel it my duty to file this dissenting opinion.