The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-09-13

nave been deprived OF the comlort anu
protection of the boy during his minority,
their consideration of these elements IS
practically confined to the pecunlary Value
of his services. Nothing can be allowed
for sorrow or grief of the parents.
l myself take no stock in a rule Whlcn
dlscards the chief elements OF pareht >
loss through the wrongful act OF anolneI,
put 1t is rule which has been 1olloWeu
Tor ages and one which the courts cannot
depart from until authorized to DO SO by
legislation.
The statement in the opinion which is
criticized is but the enumeration OF the
rule. of evidence followed in other Jurls-
dictions, and when properly explained TO
the jury by the trial court is of very
little Importance For instance, in Wa:.,
ters VS.. Chicago Railroad Company, Al
the court said: "Of course, such testi-
mony Is not very controlling in its char
acter There are. a. thousand clrcum-
stances which lead children into pursuits
widely different from those of their par
ents. This fact, known to every observ-
ant person. should be allowed due weight
by the jury In estimating the proper reli.
ance to be placed upon such testimony.
In the opinion written by Justice Gar
quite and concurred IN by Chief Justice
Beatty and Justice Harrison, it is not
ter OF law or matter of fact there Is
presumption that a child will follow the
parents. 1t is simply held that the mat
ter is circumstance which the defend
ant In an action for damages like this is
entitled to have submitted to the jury
and considered in determining the amount
to be allowed to the plaintiff in case he
be entitled to recover.
Z. :. Pittsburgh seems to me that
any wrong impression which exists about
TINS Fox decision is due entirely to a mis-
apprehension concerning the facts of the
case. 1t was not a suit by the parent to
recover the value of the life Of his child
but the value of his services during mi
nority. The law did not permit the father
to recover the value of his sons life, uut
only to sue for the value of his services,
and 1t Is unfair to criticize the Judge who
wrote the opinion because he declared
what the law was in this respect. AS
early as 1881, in a suit by Roller against
account of the killing of his infant child,
and In which | was attorney for the plain
tiff, Judge Sullivan charged the jury that
the father could only recover such a sum
as would compensate him for the loss of
the child's services during minority, and
that rule has been recognized ever since.
instead Of ignoring the poverty of the
parent or leaning against him on that ac-
count, the Supreme Court expressly took
cumstance in his favor. The railroad com
pany claimed that 1t was such negligence
on the part of the parents to allow their
child to be near a railroad track unat-
tended as to prevent any recovery what
ever. In explanation of this circumstance,
the plaintiff was allowed to show on the
trial that the parents were too poor to
keep servant to watch the child; tat
the father worked away from home and
the mother had to do her own house
work; that she was engaged at washing
when the child strayed away to the track
and that they looked after the child as
closely as they could under these condi-
timony to go in, and left it to the jury to
decide whether under these circumstances
the parents had been guilty of negligence
toward the child, and the Supreme Court
AlDrmp0 ruling
clusively that the poverty of the parents
cut an important figure in favor of the
father on the trial, and with the approval
versed. however, because the jury found
that the value of the services of the child
MReSy the $4,000 bea
to be excessive We all know that as a
rule boy, after reaching the age of Az
Is paq a9es not b nde muen for for
ductfng ali the - expenses Of his $ support SUI
and education during that period. The
courts are bound to take notice of facts
1t must be remembered that Chief Justice
Beatty concurred in this opinion. If there
fair and impartial, Judge Beatty is that
man. No one ever accused him of making
any distinction between the rich and the
poor.
NJ. 6. Chapman, one OF the attorneys
for the plaintiff in the case of Fox vs..
The Oakland Consolidated Street Railway
Company, speaking with full knowledge
has not laid down a rule that the law
thinks more of rich mans son than 1t
does of poor mans son.
Concerning the declaration of law in the
Fox case, Mr.. Chapman says: Neither is
the law declared in the Fox case new or
startling, as it assuredly would have been
had 1t contained any such declaration as
that which the enemies of Justice Van
Fleet assert. / say deliberately that in
that opinion, taken as whole or by
tence, no word bearing any such construc-
ton as that which is sought to be given
to it, and that, to the contrary. the direct,
for the death of his child the poor man
may recover more under the law than
could the rich parent recover for the
death of his child"
Mr.. Chapman remarks that the whole
State is interested in having wise and up
right Judges on the bench of our highest
court, and it becomes the duty of any
facts when such question as this Is
agitated by the people and to endeavor
to correct an impression so prejudicial
in its effects.
1.-THE legal effect" says Mr.. Chapman,
"of the decision of the Supreme Court in
of a poor man for the death Of his son q
greater recovery than could be awarded to
a rich man for the same loss. The recov-
cry, 1t is always to be borne in mind, is
based upon the estimated value of the
services of the child to the parent, having
in mind the condition in life of the child
and of his parents. The poor man shows
in court the probable earnings of his child
during minority and is awarded them ac-
cordingly. In the same kind of action the
rich man can only show that his son has
been and in the nature of things probably
will be q constant source of outlay and
expense to him during minority, and as a
consequence his recovery In the law must
be limited to q nominal sum-"
Frederick E. Whitney, who was asso-
ciated with M. c. Chapman as the plain
tiff's counsel in the case, denies that the
court held that there was one law for the
rich and another for the poor. Mr. Whit
ney in referring to the case. said:
with the exposition of the law both
plaintiff and defendant recognized the
principles of the law. and none other were
asserted by the Supreme Court In the Fox
case. 1t Is to be remembered that in no
case does the law fix price upon human
life, nor does 1t pretend to measure the
grief or suffering of the parent for the
loss of his child. In every case, be the
child the son of a rich man or the son
of poor man, the parents recovery Is
limited in the law to the estimated value
of the services during minority, over and
above the cost of his maintenance during
the same period. Such was the law uni
versally accepted long before the date of
the Fox case, and such is the law declared
in that decision. 1t Is a well known fact
that during the period of minority the
rich mans son does not earn; he spends.
The sons of poor men usually earn some