by others for: w-Jlese action company was in. no sense- rethe conclusion is not affected. The essential fact is that water from 6 feet deep is namgable to vessels Yet ,engaged in comwerce on Q.nd these. pIers extend far beyond the point thel.1e would be adepthdf 10 feet or where, but f<)\'their more. There llave been, and will be, channels and harbors (j,epth; Qut that does not mean, theoretically sufficient for the largest hoats in use or practically, have ceased to.· ba navigable, though there are now boats .for which they are inadeqIJate. The establishment by the government 'of a harborline, and the ordinances and contracts for theconstli'uction of Lake' Par1\, have, in respect to this case, just this significance, and necessarily or no more: .that, instead of ordering the piers in question to be . o rremoved, we should direct, as the'mandatei.permits, that "otlwrproceedings relating thereto be taken on application of the state,JUI :Jllilybe authoriZed by law." The land under the piers-a conof it UpOll allY reasonable view of the case,as I see itto the state. ·It ahould be surrendered or paid.f01\ It is not, as tIle of thesupr,em.ecourt in this case demonstrates, "a mere naked:JEilgal title". Which tJw statehItS; Ilor. is it held only, iffor the very PUrppfili to which these structures devoted, namely,IQommerce on ::This companYlloUls possea&ionfor its ownp,rivate purposes, we llQ.;\'ie an example to the contrary, of the, belief the· opinion of tIle suprem,ecourt, "thatnQ instance exists where the,barbor of a great cit, and its commerce have been allowed to the control of any private corporation." Tbl'! \state, if restored t() ,rights, woul<1 Mid for the ,benefit of the. pubHc, and could a!ieI\ate,only ''in those mentioned of parcels used in the imthe interest Alus held, or!when parcels caIlbe.disposed of with(mt detriment to the public iIlterest in the lands and waters ramaimng.". So said thelilupreme court in this case. We should not say . 'r,he .decree appealed frmn is affirmed.
v. &p. RY. CO. (two cases). (Circuit Court, D. 1899.) Nos. 2,019 and! 2,020. 1. NEW 'l'iltAt:"':'INADEQUAOY()'FDAMAGESAwARDED. . In an action for death ,by wrongfUl act, where two jurIes, nhder proper in:structf9;nS, have awarded· the. same .l:tmount of damages, their verdict will n«;ltbe setaside 0J?-NJe groundj;b,atsuch amount isi:ua,dequate.
DBA:I'll )3:r WI.tONGFUL ACT--;MEASURE (IF. DAMA(lES-lNF4X'i1'S, .
Under,fhe statute of K:lmtucky (Ky. St; § 6) giving a right of action for death :Caused by the 'negligence' otwrongful act of 'another to the personal representative of the person' killed, and providing that the' amoun.trllcovel·ed among the klndred.;>f the decedent tQ,eorder therein named, and In .certain events shall become a part df his estate for the paymeut of debts, the measure of damages In such an ,action, as established by the state decisions, Is the loss to the estate of the decedent caused. by the destruction of his earning power, exclUding the value of his life tQ. IUlY pl!-rtll.mlar relative who is a beneficiary. In
LINSS V. 'CHESAPEAKE &: O. BY. CO.
case of an infant, to. be taken into education during suing is a parent,
the value of his earning power. during minority is not account; nor is the expense of his maintenance and that time to be deducted, though the administrator and one of the beneficiaries.
. These were actions by Charles Linss, as administrator of his two in· fant daughters, deceased, against the Chesapeake & Ohio Railway Company, to recover, under the provisions of the Kentucky statute, for the death of his intestates by reason of the alleged negligence or wrongful acts of defendant. On motion for new trial. William Goebel and Thomas B. Phister, for plaintiff·. Simrall & Galvin, for defendant. BARR, District Judge. These cases are suits brought .for the kUI· ing of two sisters, who were the daughters of the administrator, Charles Linss. The suits were first tried at the May term by a jury in both cases. The verdict was then $1,000 in each case. A motion was ,made by the plaintiff for a new trial because of the small· ness of the verdict. The court granted the new trial, for the reasons stated in the opi¢on then filed. The cases were again tried at the December term of this court, and, as in the other trial, by one jury, and the same verdict returned. The plaintiff .again moved the court for a new trial, chiefly upon the grounds of the inadequacy of the amount of the verdict, and also that the in,structions of the court as ,to the measure of damages were erroneous. It is enough to state that the first ground cannot be sustained, since the jurors are the judges of issues of fact, under the guidance of the court; and as two juries, both of whom seem to be quite intelli· gent and impartial, have given the same verdict, the court cannot usurp the powers of the jury, and insist upon a verdict which it might, under the evidence, conclude was proper. The particular ground for error of law committed by the caurt is, as I understand, that part of the charge which directed the jury, in estlmatingthe value of the earning power of the deceased girls, both of whom were school girls, one about 12 and the other about 13 years of age, not to consider either their earning power until they became 21 years of age, or the cost of their maintenance or education during that time, but to estimate their earning power commencing when they became of age and. entitled to their earnings, considering their physical condition and expectancy of life; that from that earning power there might be'deducted 'the necessary expenses of living. I have not be· fore me the charge, but this is the substance of it, as I remember it. The learned counsel for the plaintiff insist that thus instructing the jury to leave out of the estimate the probable earnings of the girls who were killed, until they became of age, was error, .and claim that the court of appeals, in the construction of the Kentucky law which creates the rights and the remedy for the death of the person caused by negligence, construed it differently, and tbat this construction is bind- . ing upon this court. The Kentucky constitution provides that:
"Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be re-
91 FEDERAL REPORTER.
covered for i such death, from the corporations and perlJQns so causing the same. UntiHltherwise proVided by law, the action to recover such damages shall In ,albcases be prosecuted by the personal representative of the deceased person."
The legislature passed an act, under this provision of the constitution, known as section 6, Ky. St., in which it provides that the action shall be brought by the personal representative, and declares to whom, the recovery shall go. This section provides that:
"The amount recovered, less funeral expenses and the costs of administration, and such costs about the recovery, including attorney's fees, as are not included in the recovery from the defendant, shall be for the benefit of and go to the kindred of the deceased," in the order named in the section.
Under this section the father and mother would have half of the recovery. ,", .And it also provides that, if the decedent does not leave the designated kin, after the payment of the debts of the decedent the rl;mainder, if any, shall pass to his kindred as directed by the general law of descent and distribution. The Kentucky constitution also provides; ill another section; that the general assembly shall have no power to :UDl.it the amount to be recovered for injuries resulting in death. Tbere' had been on the statute books of Kentucky from 1854 to the of the Pl' cqnstitution, in 1891, legi,slation which sert created a right to recover for tleath caused by negligence. These statutes were somewhat varied in tertns, and had given rise to a great deal of discussion in the coutts, and some conflict of decil;lion. Under one of.the sections of the law it was decided that where the decedent had no widow or children there could be no recovery; and under another section of the law, that there was no such limitation. This was upon' 'the theory that in the one case the recovery went to ,'the estate, of the and in the other that it went to the widoyvand children, either ohe or both; hence the constitution made the I?rovisionheretofore, referred to.. It became necessary, therefore, for ','the courts to estatilisli'sQme measure in estimating the damages arising from the death of a decedent; and, as we understand, it is DOW the settled law that' tile of damages for the death of a decei:lenr!is the earning power ,of the decedent, and that, in estimating this elilrning power, the relatl<tiIship of husband and wife, children and parent,. or other kindredship of the beneficiaries to the decedent, are, not to be considered.lt is true that this measure of damages has been dissented from by Judge' Guffy, one of, the judges of the court of appeals (see Railroad'Colv>Eakin [decided April, 1898] 47 S. ,W. 812); and it is also true that the language which the court will permiUo be used to the jury is in much obscurity. In the case of Railway Co. v. Lang (decided in December, 1896) 38 S. W. 503, the court of appeals' attention was sharply drawn to the question of the measure of., damages, and what language should be used pythe court to the jury. The court delivered its 6pinion, and filed a modified opinion later (40 S. W, 451), and subsequently a response to the to modify the opinion (41 S. W.271). In tbat case the instruction given was:
"If the jury find for the plaintiff, they will fix the damages at a fair equivalent in money for the power of the deceased to earn money lost by reason of the destruction of his ,life, not exceeding twenty-five thousand dollars [the amount claimed in the petition]; and in fixing the damages the jury
LINSS V. CHESAPEAKE & O. RY. CO.
will take into consideration the age of the decedent at the time of his death, his earning capacity, and the probabie duration of his life."
The court seemed to object to this language, though not to the substance of the instruction, and said, among other things:
"This court has always approved instructions as to the measure of damages that authorized the jury to consider the age of the intestate, his capacity to earn money, and the probabie duration of his life. The entire question, without any other specific instruction on the subject of the power to earn money, has been left with the jury, with results that are less harmful to the wrongdoer, and, we think, more satisfactory to the court, than the rule contended for by learned counsel."
This language of the court just quoted was approved in the case of Railroad Co. v. Kelly's Adm'x (Ky.; decided in January, 1897) 38 S. W. 852, and in the syllabus the rule is stated thus:
"The measure of compensatory damages for the death of plaintiff's intestate is such sum as will reasonably compensate his estate for the destruction of bis power to earn money."
The question again came up for consideration in the case of Railroad Co. v. Eakin (Ky.; decided in April, 1898) reported in 47 So W. 872. In that case Judge Guffy dissented from the majority of the court, and insisted that the measure of damages was not the earning power of the decedent whose life was destroyed. But we think, taking all the decisions of the court of appeals, that the settled doctrine is now that the earning power of the decedent is the measure of damages, when the suit is for destroying his life; and, that being the rule, the value of that life to relatives or dependents, or the number of dependents, is not an element to be considered in estimating damages. · Section 6 of the Kentucky Statutes is intended to embrace the whole law upon the subject of the statutory right granted for the death caused by negligence or wrongful acts of others, either persons or corporations, and to do away with distinctions which existed prior to the new constitution; and that statutecontemplates that the recovery is to go to certain beneficiaries as therein declared, and in certain events to become part of the estate to pay the debts of the decedent. So that, broadly speaking, the statutory right of action is given to the administrator of a decedent to recover damages for the death of his intestate or testator, which is to be considered as the estate of that decedent, and to be distributed according to the act, and is intended to exclude the particular value of the life destroyed to any particular beneficiary. In this view, it seems to us that it logically follows that the personal representative of a decedent who loses his life by the negligence or wrongful act of another should recover for the death what the life would have been worth in earning power to the decedent,-not to any special person, who may be the mother or father, child, husband, wife, or dependent, but generally such an earning power as the decedent himself had, and such as he might, and, probably would, have had, had he lived. And that power of earning money which, if exercised, would not have belonged to the decedent, should not be estimated; nor, on the other hand, in the case of an infant, should the money necessary to support the infant, or prepare him to earn money, which would not go to the infant himself, be deducted, in fixing the value of his earning power. It seems equitable, therefore, that as the right of action given to the
perso;D.llrlr ,fl,(JQced;llnt for, the bene6tof certain parties, by reason of their relationskiptto that decedent whose Ufe is lost, and in to. pay to· earnpot tQ: ,ff, pe, lived. It is ings which @llite the elll'll,i;ngs 0,£, and tQ.supporLa:ndeducate,the fant,canno;jj, recover, asslil'eh,i' theearnil!lgs of the' itlfant. But this to with thf4elilth, independent of tM, Play .be, .grap.ted by a statute. We thmk thIS would be' also true If anapprentwe boy had l:ds shP.uldgo to ills elU'Il];ngs should, not m the reof the' adiliJhistrator, apprentice boy; If JJIissamereason. It tba(\lIe in Cpo W. 236, held a contrary Idea, and that the case of v. Lumber Co. (Ky.) 43 S·W·. W; pf In the j adJ.:n,Jlps#/iltpr, .,W,JlO, h)lsband, SR-. .r;.the $.qtu.,,CfX.' s.. ..it. 1B . ., . . . .. to t.. ..... co. st.I.·t.u.'. ljls adfWP'i:\trator, m t4e su.,m %'. . '. ·.. 1J.1¥e.. a.. .. ltf.or <'4J.:np,.g.. 1!0.r the 1.OSS. o. f . \ be. .' f . . . ,d ... ',e,injurYr1t.,.9.,.'. h. r de.' .e co uf1; h.ela . that ,maIlltalp the last actlo.I;l,. say, Ill..conopinioW ' . , .,
,,,,hieh held, tlIa-t, when an adhis,gecwent, be'I:;9u14 not also sue .for t4e of :tl1e l1ecedent prior to, his must last 'Wl:Ui acto the by another statllte. tion, llnd The rel?prt of the case a:fil1a.rris v. Luwbe:r Co. show clearly the In case the father a youth of 18 years of ""ge, Who waskilled."at a sa,wmill bysgme servants, a desued the c9l1loration for the ,death, aIlli,tl;J,e murrer to.t4e petition. went t9 the and the of ,apl*als affirmed it", ,We this merely decided that could not at .aIUor the loss of the wages of his son, them with the child's death.. .The court say, in for out
"In thjl,"UUQn for rehea;ring,co'unsel 'claims that the .petltIon did not seek a recovery, Injury reEljlltIog In thCi! of the, son of the plaintiff. We understaha the plaintiff. tp ',Seek a recovery therefor; .but if part of tbe cause Of .actlpn alleged Is, as claimed by counsel, for tbe loss of the services of· the sotl' ttbtn the date af his death untii 'he would bave attained bls majorlty"sQItilithing over two years and five montbs,-then It is, In effect, an effort tQ . ';re,;over for the Il!jllry resulting death of the son. The right
'. f," , . ., ., .. ' "
"W;e,cQw:lude .tb.lltas the persoua,l .u.en to m, Ii'the. .a . for the .\.!>$S.of li.fe. of ,th.e. wife, .8, 11:.0. tl).e c.onseq . . .·. . of Ifgent act the the husbandcaJ,l!iot malntain tIe actIol1 . the· loss of her' society. 'i, The legflfiatlve Intent was 'to increase the elements, faf damagetlowing,:friJm.theacts: or,negllgence(jllloou(ling deatb. It tj)"multlply '.Phe husband the h1ffi;,W; lieu of those he C?lTtnon aw.,':. " " ..... ::
WAGNER V. COUNTY CO:M'RS.
of the father to the eerviceeof his son ceased and determined at his death. Eden.v. Railroad Co., 14 B. Mon. 204; Railroll,d Co. v. McElwain, 98 Ky. 700, 34 S. W. 236."
Again the ,court· say:
"If the petition showed what servic,es the plaintiff's minor son had rendered the appellee before his death, and their value, then the plaintiff would have shown a cause of action against the appellee for the value of such services. In no event has the plaintitl: shown any right to recover against the appellee."
This simply means that if there were any wages due the son at the time of his death from the employer, the lumber company, the plaintiff, as father, might recover it, but nothing more. We think, therefore, . that neither of these cases is distinctly in point, and that the question under consideration is undecided. In consiMring the case upon m.otion for a new trial, we were in some doubfas to the correctness of the instruction which excluded from that jury' the probable earnings of the girls between the time of their death and when they became of age, as the administrator was one of the beneficiaries; but, without being able to find much authority upon the subject, we upon the second trial concluded that, logically, educating the infants, and their both th.e expenses of carin;g for wages, should be excluded. ThIs is the view taken of an Iowa statute by the court in the ease of Morris v. Railway Co., 26 22; We therefore conclude that the motion for new trial in each case must . be overruled, and it is so ordered.
v. COUNTY COM'RS OF FREDERICK COUNTY. MD.
;(Circuit Court of 1.
February 7. 1899.) ,
, The court of a justice of the peace in Maryland is one and inferior jurisdiction, and a judgment ()f such court can only be estabIlsbEid as a cause of. action by proving by. competent evidence all the facts essential to jurisdiction, and shoWing the regularity of the proceedings. 1..'transcript of the record' 'showing the judgment,. but not showing such faets, . iiil insufficient. '
S"ME,-:-:-AuTHENTICATIOl'f OF TRANSCRIPT-PROOF OF SIGNATURE.oF J;USTICE.
OF PROVING JUDGMENT.
To render a transcript of the records of a justice. of the peace .admissible In evidence, the signature of the justice thereto must be authenticated.
8. SAME-OERTIFICATE OF SECRETA,RY OF. STATE OF MARYLAND. The secretary of state of Maryland is not authorized by' the statutes
of, that state to certify to the genuineness of the signature of a justice of tlle, peace.
In EJ,'for to the Circuit Court of the United, States for tbeDistrict of Maryland. R.S. Tharin (John Wharton Clark, on brief), for plaintiff.in error. Edward s'Eichelberger (W. Irvine Cross, on brief), for defendants in error. Before GOFF and SIMONTON, Circuit Judges. P,AU4 Distrh;t,