"elop, to actual services can and should be produced, giving a wider basis of induction to the jllry in calculating the damage from the loss. Fourth. The circumstances of the parents suing. as in this case. often become necessary as evidence. not as a. basis for increasing or diminishing the amount, but to illustrate the acts of the child as useful or otherwise." 70 'fex. 511, 8 S. W.
No testimony was submitted as to actual earnings of deceased, nor is it reasonable to suppose that a child five years of age could· find employment by which wages might be earned. Still it cannot be said that such a child had no pecuniary value tp its parents. The question of amount is one for the jury to determine, under appropriate instructions. No precise, definite rule can be laid down in this and kindred cases, "and, when it does not appear that the verdict is not the result of the honest endeavor of the jury to follow their own convictions in the exercise of a power not precisely defined, we think that the law intends that the jury's estimate, rather than the equally undefined one of the judges, shall prevail." Railway 00, v. Lehmberg, 75 Tex. 68. 12 S. W. Rep. 838. It is said by Judge HAMMOND, in Gaither v. Railway Co., 27 Fed. Rep. 546, that he was"Unable to even guess from the proof, and we can look nowhere else, how the jury arrived at their verdict; but here. again. the trouble is that in all such cases it is impossible to calculate damages with accuracy from any proof. It is largely a matter of estimate by the jury from the proof, and not calculation. " The following cases are instructive as illustrating the difficulty in determining, under a statute like that of Texas, the precise amount of damages to be awarded where nodefinite rule can be given a jury for its guidance: Railroad 00. v. Barron, 5 Wall. 105, 106j Railway Co. v. Lester, 75 Tex. 61, 12 S. W. Rep. 955; Railway Co. v. Ormond, 64 Tex.. 490; Railway Co. v. Kindred, 57 Tex. 503. In Brunswig v. lVhite, 8upra, a verdict of $1,500 was not disturbed, and in Railway Co. v. Becker, 84 Ill. 486, one for $2,000 for the death of a boy between six and seven years of age was permitted to stand. Is one for $2,500 so clearly excessive that it should be set aside? If so, why? A resort to the cold of mathematical calculation will not answer the question, if that were even permissible in caseR like the present. If $2,500 be excessive, 'what would be the proper amount? But the question is one peculiarly for thejmy, and their finding should not be set aside unless it results from passion or prejndice, or the court can clearly see that the jury have committed some palpable error, or have totally mistaken the rules of'law by which the damages are to be measured. The rule ill thus stated by the supreme court: "For nothing is better settled than that, in such cases as the present, and other actions for torts. wbere no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the amount by their verdict. In Whipple Y. Manufactu1'ing Go.· 2 Story. 661, 670. Mr. Justice STORY well expressed the rule on this subject, that a verdict will not be set aside in a calle of tort for excessive damages. ' unless the court can clearly Ilee that the jury have committed some very gross and palpable error,
LARISON V. HAGER.
or have acted under some improper bias, influence. or prejudice. or have totally mistaken the rules of law by which the damages are to be regulated; , that is. ' unless the verdict is so excessive or outrageous.' with reference to all the circumstances of the case. 'as to demonstrate that the jury have acted against the rules of law. 01' have suffered their passions, their prejudices. or their perverse disregard of justice to mislead them.'" Barry v. Edmunds. 116 U. S. 565,6 Sup. Ct. Rep. 501; Railway Go. v. Stewart, 57 Tex. 171; Rail,'oad 00. v. Randall. 50 Tex. 261 et seq. The court is unable to say the jury were actuated by other than proper motives in arriving at their estimate of damages. The motion will be overruled; and it is so ordered.
LARISON V. HAGER
(OWCU«t Court. D. Minnesota. November 11, 1890.)
J'UDGMENT-RES JUDICATA-PARTY NOT SERVED.
A judgment in favor of one or more joint contractors is no bar to a suit against another (l'f the joint contractors, who neither voluntarily appeared nor was served with process in the first action, and who was not within the jurisdiction of the court trying the same.
Demurrer to Answer. John S. Wat8on, for plaintiff. T. T. Fauntleroy, for defendant.
NELSON, J. This suit is brought to recover 8 balance due upon a joint contract made for the purchase of lands in Dakota, belonging to business under the plaintiff. The defendants were copartners, name of"D.L. Wilbur, Trustee." In 1889 the plaintiff brought an action in Dakota against aU the defendants upon the same contract as that sued upon here, but personal service in such action was made upon two only of the defendants, (Nickeus and Wilbur,) and defendant Hager was not served, and did not voluntarily enter any appearance in the Dakota suit. The suit resulted in a judgment in favor of the defendants Nickeus and Wilbur, who alone appeared and answered therein. An appeal from such judgment was taken to, and said cause is now pending in, the supreme court of North Dakota. In the suit brought in this court the defendant Hager is the only defendant residing in the district of Minnesota, and none of the other defendants have been served or appear. Hager, in his answer, sets out and relies upon the Dakota judgment as a bar to this action. A demurrer is interposed by the plaintiff to such answer, which raises the issue whether or not Buch plea is well taken. A judgment in favor of one or more joint debtors, who were served with process, is no bar to a suit against some not served, particularly when those not served are noncresidents. There is no privity between Hager and the .defendants sued in the judgment pleaded by him in bar, So that he can take advantage of it. As a general rule a judgment will not opv.44F.no.1-4