decided against him in another action, for the same cause of action, sustaining the plea of defendant of a former judgment in defendant's favor." And in support of the motion he read from the judgment roll in the case of Greer vs. Tripp, the judgment, which is as follows: "This cause having come on regularly in its order for trial, on the 15th day of September, A. D. 1875, A. Teague, Esq., appearing for plaintiff, and Chas. N. Fox, Esq., for defendant, the plaintiff introduced his evidence and rested his case. The defendant moved the Court for a nonsuit on the ground that the plaintiff had failed to show facts sufficient to constitute a cause of action; and after hearing counsel on said motion, the Court granted said motion without prejudice to a new action. "Now, therefore, in consideration of the law and the premises, it is ordered, adjudged, and decreed that the plaintiff take nothing by his complaint in this cause, and that the defendant do have and recover of and from the plaintiff, Robert L. Greer, his costs in this action, taxed at the sum of $42.50. "Judgment rendered September 15, 1875." The Court below granted the motion of the defendant, and thereupon judgment of nonsuit was entered, from which comes this appeal. From this statement of the case it will be seen that the legal title to the undivided one-half of the premises sued for vested in the plaintiff on the 15th of October, 1872. The objection that the plaintiff failed to prove that the defendant ever refused to let him into possession is answered by the defendant's own pleading, where he denies the plaintiff's title and right of entry, and avers himself to be, and to have been for more than five years immediately preceding the commencement of this action, the exclusive owner of the whole of the premises, and in the adverse possession of them. In Miller vs. Myers, 46 Cal. 538, the Court said: "It is well settled that a refusal, after a proper demand by a tenant in common in possession, to admit his co-tenant into the possession, is itself an ouster, and dispenses with the necessity of further proof on that point. It is equally clear that in an action by a tenant in common against his co-tenant to be admitted into the possession, a denial in the answer of plaintiff's title and right of entry is equivalent to an ouster. The action is the most effective demand the plaintiff could make to be let into possession; and if his title and right of entry be denied, he need make no further proof of the ouster. (See also Spect vs. Gregg, 51 Cal. 198.) The objection that the plaintiff himself proved that his right of entry was barred by the Statute of Limitations is equally without support. It does not appear from the testimony introduced on the part of the plaintiff that the defendant ever held the premises adversely to the plaintiff or his grantors. Respecting the alleged former adjudication, the record does not show what the former action was. Neither the complaint nor the substance of it is anywhere given. From that portion of the answer appearing in the transcript and already recited, in which it is denied that the plaintiff and defendant are tenants in common of the property, it may be inferred that the former action was of the same character as the present; but it will not do to indulge in inference for the purpose of holding a party bound by a former adjudication. Besides, it does not appear that the former action, whatever it was, was determined on the merits. The judgment was a judgment of nonsuit, and in it it was expressly declared that it was granted "without prejudice to a new action." As made to appear in the record before us, it is clear that it is no bar to the present suit. Judgment reversed, and cause remanded for a new trial. We concur: McKinstry, J., McKee, J. DEPARTMENT No. 1. [Filed October 8, 1880.] No. 6721. P. S. WILCOX, RESPONDENT, VS. C. HAUSCH ET AL., APPELLANTS. Appeal from the District Court of the Thirteenth Judicial District, Tulare County. Atwell & Bradley, for respondent. By the Court: While we do not think it would be well to adopt the answer in this case as a model, we are nevertheless of the opinion that it does, by denials and affirmative averments, set forth enough to entitle the defendants to a trial upon the merits. Judgment reversed and cause remanded, with directions to the Court below to overrule the demurrer to the answer. IN BANK. [Filed October 11, 1880.] GEORGE W. DURKEE, RESPONDENT. VS. THE CENTRAL PACIFIC RAILROAD COMPANY, APPELLANT. MEASURE OF DAMAGES FOR INJURY CAUSED BY WRONGFUL ACT. In an action by a parent for injury to a child, caused by wrongful act or neglect, the measure of damages is not what would compensate the child for his sufferings or disfigurement, but what would compensate the parent for the loss of service or expenses incurred. STATUTORY CONSTRUCTION-SECTION 376, CODE OF CIVIL PROCEDURE. Section 376 of the Code of Civil Procedure, in reference to injuries of children by wrongful act or neglect, provides two rights of action for the same cause-one on behalf of the parent for loss sustained by him, and the other on behalf of the guardian for loss sustained by the infant. Appeal from the District Court of the Third Judicial District, Alameda County. McAllister & Bergin, for appellant. A. M. Crane, for respondent. MORRISON, C. J., delivered the opinion of the Court: This is an action by plaintiff to recover damages of defendant for an injury to the infant son of plaintiff, alleged to have been caused carelessly and negligently by the servants and employees of the defendant. It appears from the evidence in the case that on the 2d day of July, 1876, Milton W. Durkee, the son of the plaintiff, aged about five and a half years, was run over by an engine belonging to, and at the time in the service of, the defendant, and was so severely injured that amputation of both his feet became necessary. Verdict for $10,000 damages. It is unnecessary for us to examine into the circumstances connected with the injury, as the question of contributory negligence was fully and fairly presented to the jury for their consideration, and the fact was found that there was no contributory negligence. In our opinion the evidence justified the jury in finding that there was negligence on the part of the railroad employees, and that there was no contributory negligence on the part of the plaintiff or his infant son. There remains, therefore, but one question for this Court to determine in passing upon the appeal, and that relates to the measure of damages in cases of this character. The action is brought under Sections 376 and 377 of the Code of Civil Procedure, which read as follows: "SEC. 376. A father or in case of his death or desertion of his family, the mother-may maintain an action for the injury or death of a minor child, and a guardian for the injury or death of his ward, when such injury or death is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or death; or if such person be employed by another person who is responsible for his conduct, also against such other person. "SEC. 377. When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death; or if such person be employed by another person who is responsible for his conduct, then also against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just." It is the last clause of Section 377 which creates the embarrassment we have felt in arriving at a correct and satisfactory conclusion in this case. The Court has been unable to find a statute of any other State precisely similar to ours; the nearest approach thereto being the statutes of Indiana, New York, and Nevada. Section 27 of the Second Revised Statutes of Indiana provides as follows: "A father-or in case of his death or desertion of his family or imprisonment, the mother-may maintain an action for the injury or death of a child, and a guardian for the death or injury of his ward. But when the action is brought by a guardian for an injury to his ward, the damages shall inure to the benefit of the ward." * * * When In the case of Long vs. Morrison, 14 Ind. 600, the Supreme Court says: "On the question of damages in this class of cases the common law rule must prevail. the action is by the husband or master or parent, for their individual losses respectively, occasioned by the tortious acts towards the wife, infant child, or servant, the individual suffering of the immediate subject of a wrongful act cannot be taken into account in the assignment of damages." (See The Ohio, etc. Co. vs. Tendall, 13 Ind. R. 386.) The case last referred to was an action brought by Margaretta Tindall, mother of Daniel Tindall, deceased, a minor, against the Ohio and Mississippi Railroad Company, to re cover damages for the loss of the life of said Daniel, he having been killed by an engine of said company running upon the road. The Court says: "The third question relates to the damages. The Court instructed the jury that in estimating the damages they might take into consideration the actual pecuniary loss to the plaintiff occasioned by the death of the son and servant, and also such other circumstances as have injuriously affected the plaintiff in person, in peace of mind, and in happiness." The Court proceeds to say: "This instruction was erroneous. (See Quinn vs. Moore, 15 N. Y. 432.)” In the case of Quinn vs. Moore the Court of Appeals of New York uses this language: "In respect to purely personal torts, it is true that at common law the right of action ceases with the life of the injured party; but the theory of the statute is that the next of kin have a pecuniary interest in the life of the person killed, and the value of this interest is the amount for which the jury are to give their verdict. Neither the personal wrong or outrage to the decedent, nor the pain and suffering he may have endured, are to be taken into account. These would be the foundation of the action, and would furnish the criterion of damages if death had not ensued, and the injured party had brought the suit." The statute of New York under which the foregoing decision was made authorized the jury to give such damages as they deemed fair and just with reference to the pecuniary injury resulting from such death to the wife and next of kin of the deceased person; and in the case of Oldfield vs. The New York and Harlem R. R. Co., 14 N. Y. 318, it was held that "the jury who had all the circumstances of the casualty and the precise condition and relationship of the parties before them, should give such compensation as they should deem fair and just, keeping in view that it was to be measured by the injury done to the next of kin. They were not to compensate for the pain and suffering endured by the deceased, or the anguish and mental distress of a wife or children incident to the loss of a husband or father, but were to measure the compensation by the pecuniary injury exclusively the statute assuming that every person possesses some relative value to others." In this case the Court below instructed the jury "that they could not give damages for the physical suffering of the child, or the anguish of mind inflicted upon the parent by such a calamity; that the measure of compensation was strictly pecuniary, to indemnify fully for any pecuniary loss that may have attended or resulted from the death of the child;" and the Court of Appeals held that the |