State Ex Rel. Strepay v. Cohen

⁶⁹⁶ Bond, C. J., filed a dissenting opinion as follows, in which Urner and Adkins, JJ., concurred: Assuming that the father in this case would have been able, by the proof he offered, 'to show that he will be within the statutory class of destitute parents, then, with respect to recovery for loss of statutory support which might have been required of the son, the principles settled by the decisions in. cases under the statute on death by negligence, Code, art. 67 (section 1 ei seq.), would seem to me to require a different conclusion. In the first place, the plaintiff is not applying for enforcement of the statute on destitute parents. The death of the son removed him from all possible operation of the statute. Nor is the father suing exactly for having been deprived of a right under that statute.

He would have had no- such right under it, any more than he would have- had a right under the son’s contract of employment, which in twenty days or more might have given promise of aid to- the father. He is suing for loss of the- life of the son which would be valuable to him, and the destitute parent statute, like the son’s contract of employment, would enter'into- the case only as an evidentiary fact, to- show reason to believe that the son’s continued life- would have been of material advantage to the father, and that the cutting off of the life has deprived him of that advantage. There would seem to- me to- be no ground for objecting that the statute- would be- applied unconstitutionally or contrary to- the intention of the Legislature, for it is not to- be "applied at all in that sense. The plaintiff is concerned merely with the value to him in the life, which the statute creates as an inevitable incident.

And as to- the constitutionality of the statute itself, it is a common and ancient method of poor relief, in force in England since the reign of Elizabeth (Stat. 43 Eliz. c. 2), and extended to many jurisdictions in America, and never before- questioned; and I am not able to- agree that there is ground for questioning it now. There is no- dispute now on the principle that recovery ⁶⁹⁷ under article 67 is based on loss of benefit reasonably to have been expected from continuation of the life of the deceased, not necessarily because of a legal obligation on the deceased, although a legal obligation to give it might have existed and given rise to the required expectation of benefit. “The loss which a man suffers by the death of a relative may be the loss of something he was entitled to' receive, or may be the loss of something it was merely probable he would receive.” Tif fany, Death by Wrongful Act, see. 159. Accordingly, recovery by parents is commonly allowed for loss, by death of adult children who have been contributing to the support of the parents, or by adult children for loss from death of parents who have been contributing to the support of those children, although there is no legal obligation in either case; and on the other hand, a wife separated from her husband for twelve years, and with nothing received from him during that time, has. been held entitled to recover for loss by his death because of her legal right to support from him. In all these instances alike, the requisite expectation of benefit from continuation of the life lost was considered to exist.

Balto. & O. R. Co. v. State, use of Hauer, 60 Md. 449, 468 ; Balto. & O. R. Co. v. State, use of Mahone, 63 Md. 135, 145 ; Pikesville etc. Co. v. State, use of Russell, 88 Md. 563, 573 , 42 A. 214 ; State, use of Elder, v. Balto. & O. R. Co., 126 Md. 497 , 95 A. 65 ; Balto. & O. R. Co. v. State, use of Chambers, 81 Md. 371, 389 , 32 A. 201 . And see Franklin v. S. E. Ry. Co., 3 H. & N. 211, 214; Stimson v. Wood (1888), 57 L. J. Q. B. 484; Harrison v. Ry. Co., Cab. & El. 540.

It has been established in this state that expectation of benefit from continuation of the life of a minor son into his adult years cannot find an adequate basis in the son’s action cr attitude before his majority, because his action in the subsequent, years, being voluntary, will be governed by freedom and responsibilities of his own which will be new, and the effect of which on him cannot be foreseen. Agricultural & Mech. Assn. v. State, use of Carty, 71 Md. 86, 102, 104 , ⁶⁹⁸ 18 A. 37 ; State, use of Coughlan, v. Balto. & O. R. Co., 24 Md. 84, 106 ; Cumberland & Pennsylvania R. Co. v. State, use of Moran, 44 Md. 283 ; Baltimore & Pennsylvania R. Co., v. State, use of Stansbury, 54 Md. 648 ; Albert v. State, use of Ryan, 66 Md. 325 , 7 A. 697 . Solely because there is no sufficient basis for predicting his disposition or volition in the future years, recovery is restricted to benefits expected up to the time of the son’s majority.

Until it is manifested under the circumstances that will determine if, the disposition cannot be found and taken as a basis for inferring further benefits. But his mere disposition will not determine his action when the law imposes an obligation on him. Volition as the basis of expectation is then replaced by obligation and compulsion, and his minority at the time of death, which figures in a problem of inferring future voluntary action, is irrelevant in the problem of expectations under the statutory obligation. If the same son had reached the age of twenty-one years, and had given his father support equal to that which the law would require of him, there would be a sufficient ground for recovery of expected benefits, as was decided in the cases cited above, on the basis of voluntary disposition manifested; and to- the question whether obligation as well as voluntary disposition to give the same support furnishes the sufficient basis of expectation there- seems to me only one possible answer.

Obligation furnishes the stronger basis. All the cases which have touched on this question, so- far as I have been able to discover, take the view, therefore, that, if the parent is destitute, the obligation' imposed on the son to- contribute support after the son’s maturity gives rise to the- necessary expectation of benefit or advantage-. That was the conclusion in City of Chicago v. Keefe, 114 Ill. 222, 230 , 2 N. E. 267 , 270, in which a like obligation was imposed, by statute, to be enforced by order of court and attachment for contempt when necessary. Smith-Hurd Rev. St. Ill. 1933, ch. 107, secs. 1-11; Ill.

Ann. Stat., ch. 107, secs. 1 to 11. “Parents,” said the court, “and even brothers and sisters, ⁶⁹⁹ might reasonably