Assuming that the father in this case would have been able, by the proof he offered, to show that he will be within the statutory class of destitute parents, then, with respect to recovery for loss of statutory support which might have been required of the son, the principles settled by the decisions in cases under the statute on death by negligence, Code, art. 67 (section 1 et seq.), would seem to me to require a different conclusion.
In the first place, the plaintiff is not applying for enforcement of the statute on destitute parents. The death of the son removed him from all possible operation of the statute. Nor is the father suing exactly for having been deprived of a right under that statute. He would have had no such right under it, any more than he would have had a right under the son's contract of employment, which in twenty days or more might have given promise of aid to the father. He is suing for loss of the life of the son which would be valuable to him, and the destitute parent statute, like the son's contract of employment, would enter into the case only as an evidentiary fact, to show reason to believe that the son's continued life would have been of material advantage to the father, and that the cutting off of the life has deprived him of that advantage. There would seem to me to be no ground for objecting that the statute would be applied unconstitutionally or contrary to the intention of the Legislature, for it is not to be applied at all in that sense. The plaintiff is concerned merely with the value to him in the life, which the statute creates as an inevitable incident. And as to the constitutionality of the statute itself, it is a common and ancient method of poor relief, in force in England since the reign of Elizabeth (Stat. 43 Eliz. c. 2), and extended to many jurisdictions in America, and never before questioned; and I am not able to agree that there is ground for questioning it now.
There is no dispute now on the principle that recovery *Page 697 under article 67 is based on loss of benefit reasonably to have been expected from continuation of the life of the deceased, not necessarily because of a legal obligation on the deceased, although a legal obligation to give it might have existed and given rise to the required expectation of benefit. "The loss which a man suffers by the death of a relative may be the loss of something he was entitled to receive, or may be the loss of something it was merely probable he would receive." Tiffany,Death by Wrongful Act, sec. 159. Accordingly, recovery by parents is commonly allowed for loss by death of adult children who have been contributing to the support of the parents, or by adult children for loss from death of parents who have been contributing to the support of those children, although there is no legal obligation in either case; and on the other hand, a wife separated from her husband for twelve years and with nothing received from him during that time, has been held entitled to recover for loss by his death because of her legal right to support from him. In all these instances alike, the requisite expectation of benefit from continuation of the life lost was considered to exist. Balto. O.R. Co. v. State, use of Hauer,60 Md. 449, 468; Balto. O.R. Co. v. State, use of Mahone,63 Md. 135, 145; Pikesville etc. Co. v. State, use of Russell,88 Md. 563, 573, 42 A. 214; State, use of Elder, v. Balto. O.R.Co., 126 Md. 497, 95 A. 65; Balto. O.R. Co. v. State, use ofChambers, 81 Md. 371, 389, 32 A. 201. And see Franklin v. S.E.Ry. Co., 3 H. N. 211, 214; Stimson v. Wood (1888), 57 L.J.Q.B. 484; Harrison v. Ry. Co., Cab. El. 540.
It has been established in this state that expectation of benefit from continuation of the life of a minor son into his adult years cannot find an adequate basis in the son's action or attitude before his majority, because his action in the subsequent years, being voluntary, will be governed by freedom and responsibilities of his own which will be new, and the effect of which on him cannot be foreseen. Agricultural Mech. Assn.v. State, use of Carty, 71 Md. 86, 102, 104, *Page 698 18 A. 37; State, use of Coughlan, v. Balto. O.R. Co.,24 Md. 84, 106; Cumberland Pennsylvania R. Co. v. State, use ofMoran, 44 Md. 283; Baltimore Pennsylvania R. Co. v. State,use of Stansbury, 54 Md. 648; Albert v. State, use of Ryan,66 Md. 325, 7 A. 697. Solely because there is no sufficient basis for predicting his disposition or volition in the future years, recovery is restricted to benefits expected up to the time of the son's majority. Until it is manifested under the circumstances that will determine it, the disposition cannot be found and taken as a basis for inferring further benefits. But his mere disposition will not determine his action when the law imposes an obligation on him. Volition as the basis of expectation is then replaced by obligation and compulsion, and his minority at the time of death, which figures in a problem of inferring future voluntary action, is irrelevant in the problem of expectations under the statutory obligation. If the same son had reached the age of twenty-one years, and had given his father support equal to that which the law would require of him, there would be a sufficient ground for recovery of expected benefits, as was decided in the cases cited above, on the basis of voluntary disposition manifested; and to the question whether obligation as well as voluntary disposition to give the same support furnishes the sufficient basis of expectation there seems to me only one possible answer. Obligation furnishes the stronger basis.
All the cases which have touched on this question, so far as I have been able to discover, take the view, therefore, that, if the parent is destitute, the obligation imposed on the son to contribute support after the son's maturity gives rise to the necessary expectation of benefit or advantage. That was the conclusion in City of Chicago v. Keefe, 114 Ill. 222, 230, 2 N.E. 267, 270, in which a like obligation was imposed, by statute, to be enforced by order of court and attachment for contempt when necessary. Smith-Hurd Rev. St. Ill. 1933, ch. 107, secs. 1-11; Ill. Ann. Stat., ch. 107, secs. 1 to 11. "Parents," said the court, "and even brothers and sisters, *Page 699 might reasonably expect, in many ways, to derive pecuniary benefit from the continued life of the intestate, as of grace and favor, if not of right, at any age of life. And our statute imposes the duty of support, in the event of their becoming paupers, of the parent by the child, and of one brother or sister by another brother or sister." Under a Colorado statute, closely similar to the Maryland statute, and enforced by penalty (Courtwright's Mills, Ann. Stat., sec. 5378), the same conclusion was reached. Denver, S.P. P.R. Co. v. Wilson, 12 Colo. 20, 26, 20 P. 340. In Michigan, a like penal statute exists (Comp. Laws Mich. 1929, sec. 8224), and in Richardson v. Detroit M.Co., 176 Mich. 413, 142 N.W. 832, 838, in which the question arose, it appears to have been conceded that the obligation would give rise to the requisite expectation of benefit, but it was contended for the defendant that this would not come about until the statute had been enforced by judicial proceeding. The court replied: "We cannot agree with appellant's counsel that there can be no recovery in this case in so far as the father and mother are concerned, because action had not been taken under chapter * * * relating to the support of poor persons by their relatives." In a case on appeal to the House of Lords from Scotland, Weemsv. Mathieson, 4 Macq. 215 (1861), a like obligation imposed on an adult son, not by statute, apparently, but by the unwritten law of Scotland, was accepted as sufficient ground for recovery. If there had been no such obligation, said the Lord Chancellor, support actually given in that case would have afforded the ground for expectation of benefits. "But," he continued, "it is now proved by the clearest authority, cited by the Lord Advocate, * * * that by the law of Scotland there is a reciprocal obligation on the part of parent and child to support each other, when there is destitution on the one side and ability on the other. Therefore what Sir Fitzroy Kelly relied upon fails him altogether, for here there is proof of legal obligation, and under this legal obligation this son of the age of twenty-one, who was able to maintain his mother, and was maintaining *Page 700 her, might have been compelled to do so by process of law." An analogous case on the point seems to be that of Gaydos v.Domabyl, 301 Pa. 523, 152 A. 549, 554, under a statute which imposed on parents in some circumstances the cost of maintaining an insane adult child in a public asylum. In a suit on behalf of an adult insane child so confined, as well as on behalf of other children, for death of their mother, it was held that, even when the mother had been contributing nothing to the support of that child, "if she was obliged to support him, the duty thus enjoined would raise a presumption of expectancy."
Objection is made that the many contingencies that must have affected the amount of support, if any, which might have been exacted from this son in the future, render it too uncertain and difficult or impossible to estimate to be made the subject of an award under Lord Campbell's Act. It is an objection that might have been made in the cases just cited, and, indeed, one to which all damages for anticipated future losses must be subject in various degrees. In tort cases it is commonly impossible to find any precise basis for calculating the damages sought. In a suit for breach of promise to marry, Judge Miller, in the opinion written for the court, said: "From the nature of the case, it has been found impossible to fix the amount of compensation by any precise rule, and as in tort, the measure of damages is a question for the sound discretion of the jury in each particular instance, subject of course to the general restriction, that a verdict influenced by prejudice, passion or corruption will not be allowed to stand." Sauer v. Schulenberg, 33 Md. 288, 291. The difficulty is especially frequent in suits under Lord Campbell's Act, in which damages must be awarded for anticipated losses, often incalculable. There is hardly any more uncertainty in the amount of support which might be exacted from one of several children of a destitute parent in the future than there is in the amount which such a child after full age might voluntarily contribute through future years, hardly any more than in that which a father might receive from the continued life of a child not yet earning anything at the time of its death, *Page 701 or in the value of the support and nature which a child might expect through future years of its minority, or the aid which a married daughter might expect to receive from a mother in the form of housework and looking after children. Agricultural Mech. Assn. v. State, use of Carty, 71 Md. 86, 102, 18 A. 37;Balto. O.R. Co. v. State, use of Mahone, 63 Md. 135.
It is the essential nature and design of Lord Campell's Act to provide a commutation of uncertainties. This seems to be contemplated in its enactment merely that damages shall be such as the jury "may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought." Code, art. 67, sec. 2. And it seems to be agreed by all or nearly all courts that uncertainty in the amount of the damages, or difficulty in finding a basis of calculating them, can never interfere with an allowance under the act, if some benefit and advantage could reasonably have been expected from continuation of the life of the deceased, as here. This court, in a case in which there was no evidence of wages paid to the deceased, and it was sought to restrict the allowance to nominal damages, quoted for the true rule Pollock, C.B., in Duckworth v. Johnson, 4 H. N. 652: "It is true no distinct evidence was given of the value of the boy's services, and the cost of boarding and clothing him; but as to that, the jury were better able to judge than we are. It having been decided that a reasonable prospect of pecuniary benefit may be taken into consideration, it is impossible for us to say, that the jury were not warranted in finding the verdict which they have done." Balto. O.R. Co. v. State, use of Kelly,24 Md. 271, 282.
My conclusion, differing from that of the majority, is that the judgment should be reversed, and a new trial awarded, to afford the equitable plaintiff an opportunity to recover compensation for the item of loss of statutory support, if he can prove that he will come within the statute on destitute parents. *Page 702