and aldermen and to the plaintiff that the law of 1911, chapter 10, would render it unlawful to continue the employment when the law went into effect, three months after the adjournment of the Legislature; but it is not material whether they knew the law or not, for, although the contract was lawful when made, the law afterward made it unlawful to supply the agency with liquor to carry on the employment of the plaintiff, and, as the law rendered it unlawful to continue the business, the contract between the plaintiff and the defendant was at an end. American Mercantile Exchange v. Blunt, 102 Me. 128, 66 Atl. 212, 10 L. R. A. (N. S.) 414, 120 Am. St. Rep. 463, 10 Ann. Cas. 1022, and cases cited.

Judgment for defendant.

(112 Me. 96)

SPEAR, J. This is a motion by the defendant for a new trial. The jury found for the plaintiff in the sum of $1,811.

[1] The action was to recover for injuries which resulted in the immediate death of the plaintiff's intestate, eight years of age, and is brought by the plaintiff as administrator for the benefit of her surviving father and mother. The evidence shows that the decedent, who was with other children in the street, ran ahead of her companions, walked directly toward the track, crossed the outer rail, and remained standing on the track, looking toward the other children, with the car approaching from the rear. There she stood until the accident happened. From the undisputed evidence the jury were warranted in finding that the motorman could, if observ ing, have seen the little girl standing on the track at any point within a distance of 400

CO.

that his attention must have been called to

1914.)

1. STREET RAILROADS (§ 114*)-ACTION FOR INJURY TO PERSON ON TRACK-SUFFICIENCY OF EVIDENCE.

In an action for the death of an eight year old girl run over by a street car, evidence held to warrant a finding by the jury that the motorman was negligent in not stopping the car.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. 88 239-250; Dec. Dig. § 114.*] 2. DEATH (§§ 58, 99*)-ACTIONS FOR CAUSING DEATH DEFENSES LIGENCE.

CONTRIBUTORY NEG

Under the express provisions of Laws 1913, c. 27, in actions for wrongful death contributory negligence must be pleaded and proven by defendant.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 75-78, 125-130; Dec. Dig. §§ 58, 99.*] 3. DEATH (§ 86*) ACTION FOR CAUSING DEATH-MEASURE OF DAMAGES. Under Rev. St. c. 89, § 10, prescribing the measure of damages in actions for wrongful death as a fair and just compensation to the person for whose benefit the action is brought, the measure of damages in an action for the death of an eight year old child brought for the benefit of its parents must be based entirely upon the prospective pecuniary benefit to the parents, and a verdict of $1,811 is excessive.

[Ed. Note. For other cases, see Death, Cent Dig. 8 108, 109, 112-114, 117, 119; Dec. Dig. € 86.*]

he was at least 200 or more feet away, as that of several other people was, who repeatedly shouted to her, while the car was approaching with the gong sounding. After he saw her, had he been in the exercise of due care, it seems evident that he might have stopped his car before reaching her. The evidence further warranted the jury in finding that the car was running through this thickly settled community at a speed of 20 to 25 miles an hour, which, in the minds of the jury, may have been regarded as a negligent rate of speed, in view of the fact that it was the duty of the motorman to anticipate the dangers that were liable to happen and provide against them. If they so regarded the speed, they might have properly concluded that, had he been running with due care, the motorman could have stopped his car after he had become convinced that the little girl did not hear the warnings, and showed no indications of stepping from her dangerous situation. Upon all the evidence, it is the opinion of the court that the jury did not go astray in finding the defendant negligent.

[2] In case of immediate death, under the original statute giving a right of action, it

prove the negligence of the defendant, but also that the decedent at the time of the accident was in the exercise of due care; but under the act of 1913 the burden of proof upon the question of due care was

negligence changed. Before the latter stat

R. J. Curran, of Washington, D. C., and Connellan & Connellan, of Portland, for plaintiff. Newell & Skelton, of Lewiston, for defendant.

chapter 27, Public Laws 1913, expressly provides:

"In actions to recover damages for negligently causing the death of a person, or for injury to of such action, the person for whose death or a person who is deceased at the time of trial injury the action is brought shall be presumed

to have been in the exercise of due care at the time of all acts in any way related to his death or injury, and if contributory negligence be relied upon as a defense, it shall be pleaded and proved by the defendant."

The language of this statute is unambiguous and plain. The decedent, in the case provided for in this statute, is presumed to have been in the exercise of due care at the time of the accident and injury, and this presumption cannot be rebutted by an offer of evidence tending to prove contributory negligence, unless it "shall be pleaded" by the defendant. This defense in this case was not pleaded. The defendant, accordingly, was precluded from offering any evidence tending to prove contributory negligence. In other words, contributory negligence, if it existed on the part of the decedent, was not in issue under the pleadings.

It may be well to note, however, that, were the question of contributory negligence open, the subsequent negligence of the defendant would still seem to be sufficiently proven to establish its liability.

[3] This brings us to the question of damages. Upon this issue the court is of the opinion that the damages were clearly excessive. The right to recover damages at all in this class of cases is purely statutory. There was no common-law action. We are therefore confined to the express language of the statute. R. S. c. 89, § 10, provides:

"The jury may give such damages as they shall deem a fair and just compensation, not exceeding $5,000, with reference to the pecuniary injuries resulting from such death to the persons for whose benefit such action is brought."

conceded that a majority of children, eight years of age, will have cost their parents during their lifetime a much larger outlay than they will have contributed to their benefit. Yet the measure of damages in this class of cases is based entirely upon the prospective pecuniary benefit, which the decedent, at a given age, can be anticipated to furnish his beneficiary. In the present case the decedent was eight years old. But we cannot act upon the rule that in a majority of cases children are an outset, as the statute must be construed to assume that the immediate death of a person, old or young, may carry with it some damages. We think, however, that the court as well as the jury should consider the rule in the estimate of damages. The difficulty with the jury, and even with the court, in considering the question of damages under this statute, is to separate the cold-blooded fact of pecuniary value from those emotions of sentiment and affection which regard the loss of a child or a parent as beyond money and without price. It is the duty of the court, however, regardless of sentiment, to observe the clear mandate of the statute and finally fix the measure of damages in accordance therewith. In obedience to this duty, it is the opinion of the court that the plaintiff is entitled to recover the sum of $500.

Motion sustained' unless the plaintiff within 30 days from the certification of this case shall file a remittitur of the verdict in excess of $500.

We can readily discern how the immediate death of a parent may be a great loss to the surviving parent and children, and how the loss of a husband or wife may be a serious loss to the survivor, depending upon the circumstances surrounding the particular case; but in the case of the death of a child of tender age, whose very existence for years to come depends upon the protection of its parents, who, under the school laws, must attend school until the age of fifteen, whose capacity and character are in no way established, whose life is uncertain, whose future pecuniary usefulness to its parents is a problem, depending upon so many contingencies that it cannot be solved, a question is presented so speculative and devoid of data that any reasonable or satisfactory conclusion is practically impossible. In the last analysis, all that can be done toward calculating the future value of a young child to its parents is to make an estimate based upon such presumption of that value as may be derived from common knowledge and experience, as no evidence is possible that can foretell the future history of any given child. But the statute contemplates that parents may, during their entire lifetime, be the recipients of bounty from a child or children. Yet, if our presumption be true, it must be

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 96-113, 125; Dec. Dig. § 95.*] 3. INSURANCE (§ 665*)-ACTION ON HEALTH POLICY-SUFFICIENCY OF EVIDENCE.

In an action upon a health policy, defended on the ground that the insured made false statements in his application as to not having received medical treatment within five years, agent had full knowledge of prior sickness of evidence held to warrant a finding that the the insured.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. § 665.*]

4. INSURANCE (§ 668*)-ACTION ON HEALTH POLICY QUESTION FOR JURY.

In an action upon a health policy, whether plaintiff's disability was an acute condition

[2] But R. S. c. 49, § 93, provides that: "Such agents (of foreign insurance compashall be regarded as in the place of the company in all respects regarding any insurance

5. INSURANCE (§ 454*)—HEALTH POLICY-CON

STRUCTION.

A clause in a health policy limiting the company's liability in the event of disability or illness, resulting wholly or in part from chronic diseases, referred to chronic diseases arising after the application was made.

[Ed. Note. For other cases, see Insurance, Cent. Dig. 1177, 1178; Dec. Dig. § 454.*1 On Motion and Exceptions from Superior

Court, Kennebec County, at Law.

Action by Maurice L. Strickland against the Peerless Casualty Company. Verdict for plaintiff, and defendant excepts and moves for a new trial. Motion overruled, and ex

ception sustained.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHIL BROOK, JJ.

Williamson, Burleigh & McLean, of Augusta, for plaintiff. F. W. Clair, of Waterville, and F. E. Brown, of Newark, N. Y., for defendant.

HANSON, J. This is an action of assumpsit to recover sick benefits under a policy of insurance dated November 21, 1910. The plaintiff recovered a verdict of $145.91, the full amount claimed for illness between April 20, 1912, and July 27, 1912, and the case is before the law court on both motion and exceptions.

Motion..

The defendant company claimed relief from liability on the ground that the plaintiff in his written application made false representations of fact, viz., that he had not received any medical or surgical treatment during the five years prior thereto and that he did not then have, and had never had, any chronic disease. It is conceded that the plaintiff received and was treated for gunshot wounds only two months prior to the application, and there was evidence tending to show that he suffered from some form of gastric catarrh in the year 1907.

Article 17, § H, of the policy contains this provision:

"It is understood and agreed that if any of the statements or warranties set forth in the application for this policy are false in whole or in part, the contract issued thereon shall become null and void from its inception and that all premiums paid thereon shall be forfeited to the company."

[1] That statements in the application untrue in fact vitiate the policy is settled law. Maine Ben. Ass'n v. Parks, 81 Me. 79, 16 Atl. 339. 10 Am. St. Rep. 240; Johnson v. Maine & N. B. Ins. Co., 83 Me. 183, 22 Atl. 107. And if the question were to rest here it might perhaps with propriety be held that the verdict was manifestly contrary to the law and the evidence.

their knowledge of the risk and of all matters connected therewith. Omissions and misdescriptions known to the agent shall be regarded as known by the company, and waived by it as if noted in the policy."

This provision has been held applicable to life as well as fire insurance policies (Marston v. Ins. Co., 89 Me. 266, 36 Atl. 389, 56 Am. St. Rep. 412), and also to accident policies (Thorne v. Casualty Co., 106 Me.

274, 76 Atl. 1106; Washburn v. Casualty Co., 108 Me. 429, 81 Atl. 575). By parity of reasoning it should also be held to apply to a health policy like that in the case at bar.

[3] The plaintiff testified that the agent had full knowledge both of the gunshot which he claimed to be slight, and his testiwounds and of the previous gastric difficulty, mony stands uncontradicted. The agent was not a witness. The question of the agent's knowledge being one of fact for the jury, it is apparent that this court would not be justified in setting aside a finding reasonable in itself and based upon such uncontradicted evidence.

The motion therefore is overruled.

Exception.

Only one exception was taken and argued, and this relates, not to liability, but to the measure of damages. Article 6 of the policy reads:

"In the event of disability or illness resulting wholly or in part, directly or indirectly from tuberculosis, rheumatism, paralysis, neuritis, cancer, Bright's disease, chronic diseases, nervous diseases, and in all such cases referred to bility shall be for a period not exceeding four in this article the limit of the company's liaweeks indemnity at the rate which would otherwise be payable under article 5 of this policy, anything herein to the contrary notwithstanding.'

The rate referred to in article 5 was $80 per month plus 10 per cent. increase if the policy had been in force for more than one year, as in this case.

[4, 5] The defendant contended that the illness for which the plaintiff was seeking to recover, viz., broken compensation "resulted wholly or in part, directly or indirectly," from a chronic disease, viz., aortic regurgitation or a leaking valve of the heart, and that therefore the liability under article 6 was limited to a period of four weeks at the rate, of $88 per month. This was a question of fact for the jury to determine upon all the evidence in the case, including that of the medi cal experts. The presiding judge at the close of the charge gave this instruction requested by the plaintiff:

"The disease would not be a 'chronic disease,' as the words are used in article 6 of the policy, unless the jury are satisfied by a preponderance of the evidence that he suffered with it when he made the application, it

This in effect confines a chronic disease that would limit the measure of damages to one existing when the application was made. This is clearly wrong. A chronic disease existing at that time would not merely reduce the amount of liability, but would preclude any liability whatever and therefore any recovery. The chronic disease contemplated in article 6 is one arising after the application was made, and it was for the jury to say whether the broken compensation for which the plaintiff was seeking to recover was or was not an acute condition resulting from a chronic disease, and they should not have been obliged to find that such chronic disease existed at the time the application was made. The instruction requested and given was clearly prejudicial to the defendant, as it forced the jury to apply a test unwarranted by the condition of the policy, and to render a verdict in excess of what it might have been had the correct interpretation been given,

Exceptions sustained.

(112 Me. 103)

STATE V. MCCAULEY et al.

not aver that the recognizance was returned to the Supreme Judicial Court and entered of record; that this is not a defect in form, but a substantial defect which is not cured by R. S. c. 134, § 27; that the recognizance was taken by a bail commissioner in vacation, and the declaration should aver that said recognizance was returned to the proper court and made part of the record thereof.

The attorney for the state replies by citing the provisions of the same statute (R. S. c. 134, § 27), which reads thus:

"No action on any recognizance shall be defeated, nor judgment thereon arrested, for an omission to record a default of the principal or in the form of the recognizance, if it can be surety at the proper term, nor for any defect sufficiently understood, from its tenor, at what court the party or witness was to appear, and from the description of the offense charged, that the magistrate was authorized to require and take the same."

Concerning this statute Chief Justice Appleton, in State v. Hatch, 59 Me. 410, says:

"This section, it will be perceived, is applicable only to recognizances in criminal, and not in civil, proceedings. Hence the decisions in the latter class of cases are inapplicable.

* * This provision in regard to recognizances in criminal cases first appears in the revised statutes of 1841 [Rev. St. 1841, c. 171. 30]. The authorities of an earlier date are

1914.)

DECLARA

BAIL (§ 89*) ACTION ON BOND TION-RETURN. Rev. St. c. 134, § 27, provides that no action on any recognizance shall be defeated or judgment arrested for an omission to record a default of the principal or surety at the proper term nor for any defect in the form of the recognizance, if it can be sufficiently understood from its tenor at what court the party or witness was to appear, and from the description of the offense charged that the magistrate was authorized to take the same. Held that, where an inspection of the recognizance and declaration in a writ of scire facias sufficiently showed at what court defendant was to appear, and from the description of the offense charged that the magistrate was authorized to require and take the recognizance, the declaration was not demurrable because it did not aver that the recognizance was returned to the Supreme Judicial Court and entered of record.

[Ed. Note. For other cases, see Bail, Cent. Dig. §§ 384-400, 402; Dec. Dig. § 89.*]

Exceptions from Supreme Judicial Court, Hancock County, at Law.

Scire facias by the State against Michael McCauley and others on a recognizance. A demurrer to the writ was overruled, and defendants bring exceptions. Overruled.

Argued before SAVAGE, C. J., and SPEAR, KING, HALEY, HANSON, and PHILBROOK, JJ.

H. L. Graham, of Bar Harbor, for the State. Geo. E. Googins, of Bar Harbor, for defendants. .

PHILBROOK, J. In the court below the defendants filed a demurrer, and assigned as

inapplicable."

Thus the force of some of the authorities cited by defendant's counsel is much weakened, if not entirely destroyed.

In State v. Baker, 50 Me. 45, it was not alleged in the declaration that the recognizance was returned to the Supreme Court, and became a matter of record. Counsel for the defendant argued that without the latter allegation, "became a matter of record," the declaration was insufficient, but the court held otherwise, especially in view of the statute already referred to.

In State v. Edminster, 105 Me. 485, 75 Atl. 57, Mr. Justice Cornish, says:

"The purpose of this statute, originally passed in 1841, is to modify the strictness of the common law and to prevent the thwarting or delaying of justice by mere technicalities, and in carrying out its spirit a liberal construction has been adopted by this court."

In State v. Russ, 100 Me. 76, 60 Atl. 704, a declaration in scire facias had been demurred to, and the court sustained the dec laration saying:

"In the first place, it can be sufficiently understood from its tenor at what court the defendant was to appear and from the description of the offense charged that the magistrate was authorized to require and take the same."

In the case at bar, from an inspection of the recognizance and the declaration in the writ, it can be sufficiently understood from its tenor at what court the defendant was to appear, and from the description of the offense charged that the magistrate was authorized to require and take the same. Exceptions overruled.