
    EMMETT T. BUNYEA, Administrator, vs. THE METROPOLITAN RAILROAD COMPANY.
    Action por Death op Child ; Measure op Damages ; Pleading; Arrest op Judgment.
    1. In an action by the father to recover damages by reason of inj nries received through defendant’s negligence, which resulted in the death of his child, recovery can only be had for loss of the child’s services since the death and possibly for funeral expenses ; no recovery can be had in such a case for mental anguish, and for loss of services, nursing and expenses incurred prior to the death.
    •2. Where the same count contains different demands, for some of which recovery may be had and others not, it will be presumed on a motion in arrest of judgment that the jury were not allowed to consider those demands for which no recovery could be had.
    At Law.
    No. 26,852.
    Decided May 5, 1890.
    Justices Hagner, Cox, and James sitting.
    Appeal by defendant from an order overruling a motion in arrest of judgment on a verdict of $3,000 damages for death of plaintiff’s intestate.
    
      Judgment affirmed.
    
    The pacts are sufficiently stated in the opinion.
    Messrs. "YV. I). Davidge and C. F. Rowe for plaintiff:
    No action lay at common law for an injury to the person resulting in death. 3 Black. Com., 302; Railroad vs. Barrow, 5 Wall., 92 ; 2 Thompson, Neg., See. 72, 1272.
    If it were otherwise it was entirely competent for Congress by the Act of February 17, 1885 (23 Stat., 307), to pass a general law which would embrace cases for which the common law provided a remedy. Such instances are very common. A party within the statute might then proceed either at common law or under the statute. Here the statute was availed of in a case within both its letter and spirit, It will hardly be contended that the father is not next of kin to his child.
    
      As to blending two causes of action represented by different parties, the fact is not as stated, as an examination of' the declaration will show.
    But if it were as assumed the objection cannot be taken in arrest of judgment, but after verdict it must be presumed that the evidence was confined to the proper cause of action.. The rule is otherwise when there is more than one count. Here there is but one. The point is elaborately treated by •Judge Miller in Northern Central RR. vs. Mills, 61 Md., 358 to 363. .
    Messrs. Geo. F. Appleby and Calderon Carlisle for defendant:
    An infant cannot maintain an action. This is done by prochein amy or guardian for the child. The action may be commenced in the name of the infant, but cannot be maintained by it. The act carefully guards the case of a feme covert, but leaves the case of an infant to the common law. This court has shown the difference between the commencement and maintenance of an action in Gorham vs. Shepherd, 6 Mackey, 596.
    It seems that the legislation of some of the States is patterned on Lord Campbell’s Act, 9 and 10 Viet., Chap. 93, 1816, which act confined the right of action “for the benefit of the wife, husband, parent, and child, of the person whose death shall have been caused.” The act of Congress, however, differs from the legislation of those States in important details. For instance, Lord Campbell’s Act gives the husband damages for the death of his wife, but the act of Congress gives damages for the death of a wife to the next of kin, and the husband cannot be next of kin. It does hot, however, take away from the husband his right of action for expenses incurred by the illness and death of the wife and loss of consortium. For the same reason the act of Congress, if it -were applicable to an infant’s death, would not take away from the father his right of action for expenses incurred by reason of the child’s illness and death for loss of the child’s services, and if the father be next of kin would not allow the action which the father had at common law for such expenses and loss to be blended with or merged in an action by him as administrator for the benefit of himself as next of kin. These .two actions are essentially distinct. The father, as such, need not take out letters of administration, but even if he should be next of kin, he can only sue under the statute as administrator. The father, as such, could bring in the District his action at any time within three years. The administrator has hut one year under the act of Congress. Finally, to the father’s action could not be pleaded in abatement the' pendencj* of the administrator’s action, or in bar the administrator’s recovery of judgment. It seems, therefore, that as the act of Congress does not give damages to a parent by name, as it has no special provision for damagesin the case of minors, like the supplemental enactments in some of the State statutes, as the family of the person injured is solely in the mind of the law-makers, as creditors are ex industria excluded from the benefits of the act; and further, as the damages for expenses or loss of services were recoverable by the father of a' minor child before the act of Congress, it was not intended by Congress to give damages for the death of a minor child, because damages are given only for the pecuniary injury to the next of kin.
    We submit, however, that even if damages were recoverable by an infant’s administrator, the, declaration in this action furnishes no foundation for a judgment.
    The suit is brought by Emmett P. Bunyea, as administrator of Rebecca Bunyea, deceased, for it is averred that the “ plaintiff, as administrator of said decedent, and on behalf of the next of kin of said decedent, brings this action and claims damages.” The declaration avers that the said decedent was greatly injured and died, “ whereby the plaintiff, as said father of said decedent, was put to much expense in and about the nursing,” &c., “ and in and about the proper and decent interment and burial of said decedent, to wit, the sum of $1,500.” These expenses, as we have shown, supra, were recoverable before the Act of Congress, and are still recoverable by the father, as such; and although the averment is correct that the plaintiff, as father, was put to the expense, yet the averment, to be deemed material, must be considered as a count to recover the expenses to which the father, as such, was put; and the averment following is another count to recover damages to which the plaintiff, as next of kin, was put. If damages were properly recoverable in this action on the latter count, still no judgment can be rendered. The rule is: “ When a declaration seeks, in addition to legitimate damages, other damages w-hicli the form of the action does not permit, and there be a general assessment, the judgment should be arrested.” Sterling vs. Garritee, 18 Md., 474.
    "We propose to show' that damages are not recoverable on what we call the latter count, which is as follows:
    “And also by means of the premises, the plaintiff in this cause, as the father and next of kin of said decedent, suffered thereby great mental sorrow and great anguish of miud and body, and great pecuniary loss in being deprived of the services of said decedent, and great mental suffering and anguish in being deprived of the companionship and society of the said decedent.”
    Herein is no averment that the father vas dependent upon the minor child, or that he lost any value by its death. If the father had already “suffered pecuniary loss” on account of loss of services, as averred, it would have been easy to aver the amount thereof, and this the declaration fails to do. Any prospective loss of services should be specially averred. Gilligan vs. N. Y. RR. Co., 1 E. D. Smith, 461. The averment, as made, does not cover prospective loss. It is too general (Pollard vs. Lyon, 91 U. S., 238), and, besides, any such special loss was recoverable by the father as such before the Act of Congress, as is shown by the case of Ford vs. Monroe, 20 Wendell, 210, in which it was held that a father in an action with a proper declaration can recover damages for .the loss of services of a minor-child against a person who negligently caused his death, to. be computed from time of death to the time of child’s-majority if the child had lived. See Patterson, Railway Accident Law, Sec. 399, 481. It is quite evident that- the father did not suffer any peeuniaiy loss by being deprived of services. The tender age of the child — seven years, as-averred — precludes the idea of any loss of services. 4 H. & N., 656; 54 Ga., 503. The second count, so far as the-claim for damages is concerned, is reduced, therefore, to a claim for dollars, because the plaintiff — as next of kin— “ suffered great mental sorrow and great anguish of mind and body” “ groat mental suffering and anguish in being deprived of the companionship and society of the said decedent.”
    Some men may be despicable enough to put a price on such alleged sorrow and anguish and to trade on affliction,, but happily the courts have, as aforesaid, by their decisions so construed' statutes like the act of Congress in question as to prevent the'gauging of human sorrow by a pecuniary standard. Blake vs. Midland, RR. Co., 18 Q. B., A. & E., N. S., 90; 63 Md., 146 ; Pollok on Torts, 60.
    It follows that it is impossible for the court to tell on wdiat part of the declaration the verdict of $3,000 is based, and hence the order overruling the motion in arrest of judgment, from which the appeal to this court is taken, should be reversed, and the Circuit Court should be directed to enter a judgment for the defendant.
   Mr. Justice Cox

delivered the opinion of the Court:

In the case of Emmett T. Bunyea, administrator, vs.. Metropolitan Railroad Company the action was brought under the late act of Congress by the administrator of an infant child who was killed upon the- railroad,, and in the-declaration the averment of damages is, after narrating the circumstances of the death of the child, “ whereby the plaintiff, as said father of said decedent, was put to much expense in and about the nursing and taking care of said decedent after said injury and till her death, and in and about the propor'and decent interment and burial of said decedent, to wit, the sum of $1,500. And also by means of the premises, the plaintiff in this cause, as the father and next of kin to said decedent, suffered thereby great mental sorrow and great anguish of mind and body and great pecuniary loss in being deprived of the services of the decedent, and great mental suffering and anguish in being deprived of the companionship and society of the said decedent, to the damage of the plaintiff, as said father and next of kin to said decedent, the sum of $10,000.”

The action is brought under the Actof Congress, approved February 17, 1885, which provides:

“ That whenever, by an injury done or happening within the limits of the District of Columbia, the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured * * * to maintain an action and recover damages, the person who, or corporation which, would have beeh liable had death not ensued, shall be liable to an action for damages for such death, notwithstanding the death of the person injured,” &c., and such action is to be brought by the administrator of the deceased. Now, it is argued here that part of the damages claimed were such as were not caused by the death, and did not, therefore, fall within the scope of the action provided for in this law. The act provides that an action may be brought “ for damages for such death.” The father had a right independent of the act to bring a suit in his own name for damages for loss of the child’s services during her life .and the expense to which he w’as subjected for medical attendanee, &c., during' her life, and these would have been caused by the injury, but not by the death. Under the act he was not entitled to damages for mental suffering and anguish that he experienced, but, at furthest, merely for the loss of the child’s services by her death and possibly her funeral expenses. The declaration, therefore, joined several causes of action, some of which could not be recovered for in this suit. If these different causes of action had been set forth in different counts, the verdict being general in this case, it is admitted that upon motion in arrest of judgment, which was made and in which form it comes before us, the motion in arrest would have to be sustained. But this declaration has only one count in which it joins several causes of action. It might have been open to demurrer. It occurred to us in the course of the argument, however, that in such a case after verdict it must be presumed that upon the trial' the proper discrimination ivas made between these causes of action by the court, and the jury was not allowed to give damages for those causes on which the defendant was not liable, and we find that view sustained by a case cited on the part of the plaintiff from the 61st Maryland Reports — the case of the Northern Central' Railroad Company vs. Mills et ux. There the declaration, which contains but a single count, avers, in substance, that the defendant, by its agents and servants so negligently and carelessly moved a train of cars drawn by horses along its track at the corner of Monument and North streets in the city of Baltimore, where the plaintiff, Margaret, with her husband, was, at the time, crossing; that she, the said Margaret, in order to escape being run over, was forced to leap from the track, and thereby sustained a fracture in the ankle and was 'greatly hurt, &c., and so continued for a long space of time, during which she thereby suffered and underwent great pain, and was hindered and prevented from performing and transacting her necessary affairs and business, and also, thereby, the said plaintiffs were forced and obliged to and did pay, lay out and expend a large sum of money in and about endeavoring to cure the said Margaret of the bruises, &c. Now, the same point was made there that is made here, and the court says:

" The distinction, as to effect, between stated causes of action, for which different parties ought to sue in different counts of the declaration, and joining them in the same or a single count, may seem narrow by some of the adjudications referred to, but, nevertheless, as shown by some of the adjudications referred to, it is supported by very high authority. In fact, the Court of King’s Bench went so far as to say, ‘ It is a settled rule that if the same count contains two demands or complaints, for one of which the action lies and not the other, all the damages shall be referred to the good cause of action, although it would be otherwise if they were separate counts.’
“ We have been thus led to a review of these adjudications, not only for the reason that the case appears to be of importance to the parties, at least to those who are seeking to sustain the verdict and judgment, but also because the decisions seemed, in some instances, to have been placed on different grounds, and especially because Me have found, upon examination, that the weight of authority is opposed to what were our first impressions as to the law on this subject. But we affirm the action of the court below in overruling the motion in arrest, and dusoupon the distinct ground that after verdict it must be intended that at the trial the evidence was confined to the personal injury and suffering of the wife, and that none was offered as to the expenditure of money in curing her, or, if offered, that it was rejected by the court and excluded from the consideration of the jury. And this we regard simply as a reasonable and proper extension of the well-settled general principle that where there is any defect, imperfection, or omission in any plea, whether in substance or form, which would have been a fatal objection upon the demurrer, yet if the issues joined be such as necessarily required, on the-trial, proof of the facts so defectively.or imperfectly stated and without which it is not to be presumed that either the-judge -would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdicts.”

AVe think that case sustains the position taken by the defense ; that after verdict it shall be presumed that proper instructions were given to the jury.

We affirm the judgment of the court below.  