.

next of kin no recovery can be had for his death, nor if there rests upon him no moral or legal obligation to contribute to the support of next of kin, if any are left surviving him; that the jury have no right, in "fairness and justice," under this statute, to give men bloodmoney or punitive damages, but the damages found must be compensatory, and susceptible of proof. In support of this claim the counsel for defendant cite the following Michigan cases: Hyatt v. Adams, 16 Mich. 180; Chicago & N. W. Ry. Co. v. Bayfield, 37 Id. 205; Staal v. Railroad Co., 57 Id. 239, 245 (23 N. W. Rep. 795); Mynning v. Railroad Co., 59 Id. 257 (26 N. W. Rep. 514); Klanowski v. Railway Co., 57 Id. 525 (24 N. W. Rep. 801); Cooper v. Railway Co., 66 Id. 261 (33 N. W. Rep. 306); Balch v. Railroad Co., 67 Id. 394 (34 N. W. Rep. 884); Rajnowski v. Railroad Co., 74 Id. 20 (41 N. W. Rep. 847). Reference is also made to authorities from other states, and to text-books.

The plaintiff's counsel contend, first, that the deceased would have been required under the statutes of this State to maintain his father, had such father been unable to take care of himself, and that there can be no doubt of his moral obligation to do so, independently of any statute. But they further argue that, by the revision of 1873, the Legislature intended to, and did, alter the rule prevailing under "Lord Campbell's Act," so called (9 & 10 Vict. c. 93), of which the statutes of this State (Comp. Laws 1871, § 2351) and of other states were a substantial copy; and, by such revision of 1873, not only took away the limit of $5,000 under the old law, but meant to authorize the jury to give such amount of damages as they might deem fair and just, under the circumstances; and that it should not depend on the moral or legal obligation of the deceased to support or contribute to the support of any one. That, as amended by the amendment

of 1873, the statute does not give these damages for the exclusive benefit of the widow or next of kin, but provides that

"The amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate." Laws 1873, p.

127.

That it may with reason be contended that the money received would be assets in the hands of the administrator for the payment of debts, and for distribution under the statute of distribution. Counsel in their supplemental brief review the authorities cited from this Court in defendant's brief, and claim the Bayfield case was brought under the old railroad law, as was also Staal v. Railroad Co., 57 Mich. 239, or else under the general law (sections 8313 and 8314, How. Stat.), or that the Supreme Court assumed such to be the case, and decided them upon that basis; and that the other cases, as far as they touch the question here, were also decided under the principles governing the general statute above cited..

Sections 8313 and 8314 of the general law are as follows:

"SEC. 8313. Whenever the death of a person shall be caused by wrongful act, neglect, or default, 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 in respect thereof, then and in every such case the person who, or the corporation which, would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances amount in law to felony.

"SEC. 8314. Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be distributed to the persons and in the proportions provided by law in relation to the distribution of personal property left by persons dying intestate; and in

every such action the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to those persons who may be entitled to such damages when recovered."

The italicized words in section 8314 show in what respect it differs from section 3392. The latter section authorizes the jury to give such damages as they shall deem "fair and just," without any express qualification as to "pecuniary injury," while the former declares that the same shall be given with reference to such "pecuniary injury." Sections 8313 and 8314, How. Stat., constitute the act of February 12, 1848, as amended by Act No. 94, Laws of 1873. As originally passed, and until 1873, the act confined the damages to the exclusive benefit of the widow and next of kin. See Comp. Laws 1871, p. 1882, §6725. The amendment in 1873, which is now section 8314, How. Stat., and which enlarges the right to sue, allowing any person who would be a distributee under our statutes of distribution, and pecuniarily injured by the death, to maintain an action for damages through the personal representatives, was enacted at the same session as the amendment to the general railroad law, which is now section 3392, How. Stat.

The query naturally arises, under the position taken by plaintiff's counsel, and in view of these statutes, did the Legislature intend to make one rule in case of deaths occasioned by the wrongful act, neglect, or default of a railroad company, and another rule in reference to deaths caused by the wrongful act, neglect, or default of persons. or corporations other than railroad companies? If the contention of the plaintiff be correct, in case of a death resulting from the neglect or wrongful act of a railroad company, the personal representatives of the deceased can sue and recover from such company whatever damages a jury may deem just and fair, without reference to the

question whether any person has been shown to have suffered any pecuniary injury by such death, while, in the case of such death being caused by some person or corporation other than a railroad company, the personal representatives can only recover damages in case pecuniary injury is shown to some one, and in reference to such injury. This would certainly be class legislation, and we are not prepared to hold that such was the intention of the Legislature. Taking all the statutes together, and the fact that sections 3392 and 8314 were both amended and enacted, as they now read, at the same session of the Legislature, in 1873, we think it must be considered that the fair and just damages in all cases must have reference to the pecuniary injury resulting from the death which is made the basis of the action. We have always held in these actions-although it may be, as claimed by plaintiff's counsel, that the difference between the two sections 3392 and 8314 has never been specially called to our attention before-that the damages must

"Be based upon some well-defined facts or known circumstances in the case,-such facts as are susceptible of some proof under the well-settled rules governing the admissibility of testimony." Mynning v. Railroad Co., infra.

And that the damages must be given in reference to pecuniary injury; and that any injuries that are not susceptible of being compensated by a money consideration must be excluded as elements to be taken into consideration by the jury in determining the amount of damages in this class of cases. Mynning v. Railroad Co., 59 Mich. 262; Chicago & N. W. Ry. Co. v. Bayfield, 37 Id. 205; Cooper v. Railway Co., 66 Id. 261; Balch v. Railroad Co., 67 Id. 394; Rajnowski v. Railway Co., 74 Id. 20.

In this case the proofs showed no person pecuniarily injured by the death of plaintiff's intestate. No action

lies in this case out of the mere relation of father and child. The father was in no way injured by the loss of his son's earnings, or deprived of any reliance for his own support. Clinton v. Laning, 61 Mich. 359 (28 N. W. Rep. 125). The circuit judge was correct in taking the case from the jury for the reason assigned by him.

It is not necessary to consider the other points raised in the case as to the negligence of defendant, or the contributory negligence of the deceased, or in relation to the admission or rejection of testimony. The plaintiff's counsel was given full opportunity to show proper damages, if any were susceptible of proof. Failing in this, he could not recover under any circumstances, and all other questions become immaterial.

The point is suggested by plaintiff's counsel for the first time in this Court that the cause of action which the plaintiff's intestate, William H. Van Brunt, had for his personal injuries while living survives to his personal representatives, under section 7397, Stat., as

amended by Act No. 113, Laws of 1885.'

It is sufficient answer to this suggestion that plaintiff expressly in his pleadings, planted his suit upon sections, 3391, 3392, 8313, and 8314, How. Stat., and also expressly stated in the court below that he relied for recovery upon sections 3391 and 3392. He must stand upon his pleadings and assertions in the court below.

The judgment is affirmed, with costs.

SHERWOOD, C. J., CHAMPLIN and CAMPBELL, JJ., concurred. LONG, J., did not sit.

Act No. 113, Laws of 1885, provides that actions for "negligent injuries to the person" shall survive.