Section 3761. A father, or, in case of his death or imprisonment or desertion of his family, the mother, may prosecute as plaintiff an action for the expenses and actual loss of service resulting from the injury or death of a minor child.
[241]. Southern R. Co. v. Shipp, 169 Ala. 327; Nashville Lumber Co. v. Busbee, 100 Ark. 76 Accord. See Macdonald v. O’Reilley, 45 Or. 589. In Warren v. Street R., 70 N. H. 352, 362, Pike, J., said: “The child’s cause of action survived by reason of the statute, and the money recovered in it will be assets in the hands of its administrator, to be distributed in accordance with the special provisions of the statute. If the father’s negligence barred his right to recover in this action, there would seem to be no reason why it would not bar him from recovering any property of the child which he might inherit under the general provisions relating to descent and distribution, but this is not claimed to be and is not the law.”
[242]. Lee v. New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co. v. Logue, 158 Ill. 621; True v. Woda, 201 Ill. 315; Gibbons v. Williams, 135 Mass. 333; Tucker v. Draper, 62 Neb. 66; Davis v. Seaboard R. Co., 136 N. C. 115; Scherer v. Schlaberg, 18 N. D. 421; Bamberger v. Citizens’ R. Co., 95 Tenn. 18; Palmer v. Oregon R. Co., 34 Utah, 466; Ploof v. Burlington Traction Co., 70 Vt. 509; Vinnette v. Northern R. Co., 47 Wash. 320; Gunn v. Ohio R. Co., 42 W. Va. 676 Accord.
“The right of recovery and measure of damages are different from what existed in the intestate. This right of recovery did not exist at common law. It is wholly given by the act. It is not an act to cause to survive a right of recovery which otherwise would be taken away by the death of the injured.... Hence the contention that the recovery is in the right of the intestate, and can be defeated only by his contributory negligence, cannot be sustained.... From a very early day the common law has denied a recovery, as unjust, to a party whose negligence has contributed to the accident causing the injury for which he demands damages. All statutes conferring a right of recovery of damages, especially when in terms they give such damages only as are just, must be read and considered with reference to this universal principle of the common law.” Ross, C. J., in Ploof v. Burlington Traction Co., 70 Vt. 509, 516, 517.
“Shall the state say to the father, ‘If you know that your child is in danger of injury from the negligence of others, you are under no legal obligation to protect it from such injury, and if you allow the child to be killed, you may recover, from one who is equally at fault with yourself, for any pecuniary injury you may suffer by reason of the death?’ No such meaning can be derived from the statute.” Sedgwick, C., in Tucker v. Draper, 62 Neb. 66, 67.
See Wigmore, Contributory Negligence of the Beneficiary as a Bar to an Administrator’s Action for Death, 2 Illinois Law Rev. 487.
As to recovery where third person is administrator and there is negligence on the part of the sole beneficiary or all the beneficiaries, see: Toledo R. Co. v. Grable, 88 Ill. 441; Feldman v. Detroit R. Co., 162 Mich. 486; Davis v. Seaboard R. Co., 136 N. C. 115; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Gunn v. Ohio R. Co., 42 W. Va. 676. Contra: Wymore v. Mahaska County, 78 Ia. 396; McKay v. Syracuse R. Co., 208 N. Y. 359.
As to recovery where some of the beneficiaries are negligent and others not, see: Phillips v. Denver Tramway Co., 53 Col. 458; Love v. Detroit R. Co., 170 Mich. 1; Wolf v. Lake Erie R. Co., 55 Ohio St. 517; Darbrinsky v. Pennsylvania Co., 248 Pa. St. 503.
[243]. See Broschart v. Tuttle, 59 Conn. 1; Dudley v. Northampton, 202 Mass. 443, 449.
[244]. The arguments are omitted.