(dissenting). I am unable to agree with the majority of the court in the conclusion reached in this case. In my judgment, the statutes of Alabama as construed by the Supreme Court of that state, allow only compensatory damages in cases of this character; that is, the loss to the parent of the minor’s services during minority. Under the law of Alabama, as I understand it, when a minor child is employed without the knowledge or consent of the parent in a dangerous service, and is injured in such service, and dies from the injuries, the father, and the mother in certain contingencies, may sue and recover against the employer; the measure of damages being the value of the child’s services during minority; that is, the parent’s pecuniary loss. In such cases the contributory negligence of the deceased is not a defense. In another class of cases, when a minor child is killed in the service of another, the right of action which he *788would have had if he had been injured and had not died in case of death survives to the personal representative or to the father, or, under certain circumstances, to the mother, and in these cases the defense of contributory negligence may be interposed.
The plaintiff, the father in this case, elected the former cause of action. The pleas of contributory negligence filed by the defendant company were stricken because it was this character of action, and the case was tried on that theory, as the whole record, including the instructions by the court to the jury, shows. There was no evidence in the case as to the value of the services of the deceased. His age was proven, which of course would give the length of time that would elapse until he attained his majority, but this was all. The court instructed the jury that the plaintiff, the father, was entitled to .recover such damages “as the jury might assess.” The court was careful to tell the jury while stating that the suit provided for such damages as they might assess, that the amount they should find ought to be found as their “calm and deliberate judgment,” and under the control of the law, and that they should not be moved to find an undue amount by prejudice or sympathy. All this, however, simply left the jury to find such amount as in their judgment might be fair and reasonable for the killing of the father’s minor child. I think the jury should have been restricted, to the value of the child’s service to the parent during minority. As to what this would have been, as has been stated, there was no evidence.
In my judgment this question is settled by the construction ..placed by the Supreme Court of Alabama on the Alabama statutes. The most important case on that subject is the case of Williams v. Railroad Co., 91 Ala. 635, 9 South. 77. A brief extract from the conclusion of the opinion in that case will show what was determined as to the question here involved:
“The first and last counts of the complaint aver that decedent was a minor son of plaintiff; that he was wrongfully employed by the defendant to perform the duties of a brakeman without the knowledge and consent of the plaintiff, and while attempting to obey the orders of his superior, in the performance of his duties as brakeman, was injured and killed by the wrong and negligence of the defendant’s agents and servants. These two counts show a good cause of action, and there was evidence tending to sustain the aver-ments of these two counts. It was error to give the general charge for the defendant. The damages recoverable by the father are compensatory and not punitive.” Citing Railroad Co. v. Orr, 91 Ala. 548, 8 South. 363, and cases there cited.
The rule announced in this case, so far as my examination shows, has never been changed by the Supreme Court of Alabama. On the contrary, in the last case on this subject to which attention has been called, or which I have been able to find (Railway Co. v. Hill, 146 Ala. 240, 40 South. 612), the same view of the measure of damages is announced, as will be seen by an extract from the opinion, in the following language:
“The gravamen of the eighth count is ‘the alleged wrong of the defendant in putting the plaintiff’s minor son to work at a dangerous place upon a dangerous work without her consent.’ Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914. The count avers that in consequence of such wrong her son was killed, and plaintiff (thereby) lost his services during his *789minority, and plaintiff was damaged by reason of said injury. This damage was the deprivation of his service and wages until he attained his majority; the father being dead, and the son not having been emancipated.”
But these statutes of Alabama have been construed by this court. In McGehee v. McCarley, 91 Fed. 462-465, 38 C. C. A. 629, in the opinion of the court, this language is used:
“But the majority of this court finds material error in this causo resulting from the failure of the trial court to charge the jury, as the defendants below requested, that only compensatory, and not punitive, damages were recoverable in the ease. It is plain to us that under the doctrine of Railway Co. v. Prentice, 147 U. S. 101, 13 Sup. Ct. 261, 37 L. Ed. 97, no punitive damages could be recovered in this case. It is not claimed that the corporation ever authorized or ratified the alleged negligence or assault. While the corporation may be compelled to make compensation for the tortious act of its servant committed in the scope of his employment, oven if the act be willful and wanton, yet, if the corporation be itself innocent, it cannot be punished bv the infliction of vindictive damages. See Circuit Court of Appeals, Seventh Circuit, in Railway Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822. We find nothing in the statute of Alabama which would require a departure from the doctrine announced in Railway Co. v. Prentice, supra. On the contrary, we find that the Supreme Court of Alabama, in construing the very statute under which this action was brought (Code Ala. 1886, § 2588), said that the damages recoverable under that statute are compensatory and not. punitive. Williams v. Railroad Co., 91 Ala. 635, 9 South. 77. We are clear that the judgment must be reversed because of the error above stated.”
There was a rehearing in this case and the judgment of the court was changed, and instead of being reversed it was affirmed, but upon the ground it seems that the suit was found to have been brought under section 27 of the Code of Alabama of 1896, and not under section 26, as was assumed when it was first decided. To this last decision Judge Pardee filed a dissenting opinion. McGehee v. McCarley, 103 Fed. 55, 44 C. C. A. 252.
The case now before the court, it is conceded, is proceeding under section 26. Judge McCORMICK, however, evidently entertained and acted upon the same view in both decisions in the case of McGehee v. McCarley which he has expressed in this case.
I think the distinction I have drawn, which seems to me to be supported by the statutes and decisions in Alabama, is light, and is founded not only in reason, but in justice. If the parent elects to sue in right of the survivorship of the minor child’s cause of action, and brings a suit against which any contributory negligence of the deceased may be set up as a defense (if the child has attained such age as that contributory negligence can be pleaded), then the parent would be enti-titled to, and ought to recover, if liability is shown, a substantial verdict, how to be measured under the law of Alabama it is unnecessary to say, but certainly going beyond any mere value of minority service. If, however, the parent wishes to avoid any defense which the employer might properly set up against the deceased, and chooses to sue in his or her own right as parent, for the child’s death, it seems to me that the recovery iñ justice should be restricted to the parent’s pecuniary loss; that is, the value of the child’s services during minority. In my judgment this is not only fair and right, but it is the law of Alabama deducible from its statutes and decisions. Certainly a statute undertaking to give any greater right should do so dearly and distinctly.
*790I think the decision of the Circuit Court should be reversed, and the case remanded and a new trial had, in which the law of damage , could be stated to the jury in accordance with what has been herein said.