James v. Christy

18 Mo. 162

• Court: Supreme Court of Missouri
• Decided: March 15, 1853
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

The plaintiff brought an action against the defendants, as common carriers for hire, being the owners of a steam ferry boat used in crossing the Mississippi river from St. Louis to Illinois. It is alleged that, by reason of the imperfection of the machinery of the boat, which was known to the defendants, and their negligence and carelessness, an explosion occurred which caused the death of a son of the plaintiff whilst he was a passenger on the boat, crossing the river. The son was living with his father, and was fifteen years of age. After the beginning of tbe suit, tbe plaintiff died, and bis administrator, entering bis appearance, on motion, tbe suit was abated. Tbe question is, whether tbe action survived to tbe administrator of tbe deceased. _ •

1. By our law, tbe father has a property in the-services of bis son during bis minority, and whilst be is under bis guardianship. If, by tbe misconduct of another, he is deprived of these services, or the son is disabled from performing them, the law awards him a compensation in damages. Tbe measure of damages, in such eases, is governed by tbe circumstances, which will be weighed by tbe jury. This controversy involves tbe construction of tbe twenty-fifth section of the second article of tbe act concerning executors and administrators. That section formerly underwent a discussion in this court, in tbe case of Higgins v. Breen, 9 Mo. Rep. 497. That case settles tbe principles which will govern this. It was there held, that tbe statute extends to all acts by which personal property is lessened in value. Here, tbe father was entirely deprived of all property in bis son’s services. Tbe recovery will be limited to the actual value of tbe services, as they may be ascertained by a jury. Tbe administrator will not be entitled to any re^ numeration for tbe loss of tbe society or comforts afforded b* a child to bis parent. Damages of this character died with tbe parent, and bis estate is entitled to compensation, only so far as it has been lessened by tbe loss of tbe son’s services. Tbe father was no longer entitled to those services than during bis life. Had tbe son been alive, on tbe death of bis father, bis services would not have belonged to bis estate, but would have been due to tbe individual who succeeded him in tbe relation of parent, or would have belonged to himself.

Tbe other judges content, tbe judgment will be reversed and tbe cause remanded.