It has been held that where the death is instantaneous an action cannot be main tained under the survival statutes; Sweet land v. R. Co., 117 Mich. 329, 75 N. W. 1066, 43 L. R. A. 568; and where the decedent survived the injury about twelve hours, it was held by a divided court that a judg ment based on the death act could not be sustained, as that act could apply only to cases where the death was instantaneous, and that in other cases the action must be based on what was termed the survival act ; Dolson v. R. Co., 128 Mich. 444, 87 N. W. 629 ; Belding v. R. Co., 3 S. D. 369, 53 N. W. 750; Sawyer v. Perry, 88 Me. 42, 33 Atl. 660.
Where the plaintiff's husband released the defendant from liability for personal inju ries received by her such a release was held a bar to a recovery, when five years later such injuries resulted in her, death, on the ground that the wife was privy to the hus band, and therefore estopped by his release; and that payment, like pardon, relates back to the original act; Southern Bell Telephone & Telegraph Co. v. Cassin, 111 Ga. 575, 36 S. E. 881, 50 L. R. A. 694.
Collateral relations must show that they suffered pecuniary loss in order to permit a recovery of more than nominal damages ; Anderson v. R. Co., 35 Neb. 95, 52 N. W. 84(); Paulmier v. R. Co., 34 N. J. L. 151; In re California Nay. & Imp. Co., 110 Fed. 670; Burk v. R. Co., 125 Cal. 364, 57 Pac. 1065, 73 Am. St. Rep. 52; Serensen v. R. Co., 45 Fed. 407 ; or reasonable expectation thereof; Thomas v. R. Co., 6 Civ. Proc. R. (N. Y.) 353; The 0. L. Hallenbeck, 119 Fed. 468. The amount the deceased would prob ably have added to his estate has been adopted as the measure of recovery ; Chi cago, P. & St. L. R. Co. v. Woolridge, 174 Ill. 330, 51 N. E. 701; and probabilities, not possibilities, of benefits; Cleveland, C., C. & St. L. R. Co. v. Drumm, 32 Ind. App. 547, 70 N. E. 286.
The loss of parental care will not be considered in awarding damages; McCabe v. Lighting Co., 27 R. I. 272, 61 Atl. 667; contra, Anthony Ittner Brick Co. v. Ashby, 198 III. 562, 64 N. E. 1109. As to wheth er the pain and suffering of the deceased or the grief and wounded feelings of his surviving relatives will be considered in the estimate of damages, see MENTAL SUF FERING.
The mother of an illegitimate child can not recover ; McDonald v. R. Co., 71 S. C. 352, 51 S. E. 138, 2 L. R. A. (N. S.) 640, 110 Am. St. Rep. 576; where the statute gives the right to the mother and other specified relatives; Alabama & V. Ry. Co. v. Williams, 78 Miss. 209, 28 South. 853, 51 L. R. A. 836, 84 Am. St. Rep. 624; Marshall v. R. Co., 46 Fed. 269 ; althOugh statute; an mate child and his mother may inherit from each other; Harkins v. R. Co., 15 Phila.
(Pa.) 286. These cases follow the English rule, which denies the right of action on the ground that "child" in an act of parlia ment always applies exclusively to a legiti mate child; 2 Hurlst. & C. 735.
On the other hand, where the statute al lowed an illegitimate child and its mother to inherit from each other, the mother should be permitted to recover ; Marshall v. R. Co., 120 Mo. 275, 25 S. W. 179 ; so also where the statute gave the right of re covery to the widow and next of kin; Se curity Title & TruSt Co. v. R. R. Co., 91 Ill. App. 332.
When the legislature has created a right of action for wrongful death for the bene fit of the next of kin, and has declared that the father, if living, is the next of kin of minor children who leave neither widow nor children, an action for the death of such child must be for the sole benefit of the father, although he has deserted his fam ily, to whose support the deceased child was at the time of his death contributing ; Swift & Co. v. Jehiison,• 138 Fed. 867, 71 C. C. A. 1 L. R. A. (N. S.) 1161 ; Pineo v. R. Co., 99 N. Y. 644, affirming '34 Hun (N. Y.) 80. It is said, hoiveVer that he• may have only nominal damages in such case ; Cook v. GunObwder Co., 70 N. J. L. 65, 56 Atl. 114; and his right to recover at all is denied in Southern It CO. v. Flemister, 120 Ga. 524, 48 S. E. 160.
" At common law, neither husband nor wire may' recover •damages for the negligent kill ing of the Other where death is instantan eous; either for loss of services Or consor tiwn Armstrong v. Beadle, Fed. Cas. No. 541; ifowell v. Board of Com'rs, 121 N. C. 362; 28 S. E. 362 ; Johnson v. Electric CO., 39 'Wash. 211, 81 Pac. 705; Wyatt v. Wil liams, 43 N. H. 102; Grosso v. R. CO., 50 N. J. L. 317, 13 Atl. 233; Womack v. Banking Co., 80 Ga. 132, 5 S. E. 63; The Harrisburg,. 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Mowry v. Chaney, 43 la. 609 ; Sherlag v. Kelley, 200 Mass. 232, 86 N. E. 293, 19' L. R. A. (N. S.) 683, 128 Am. St. Rep. 414 ; Green V. R. Co., 28 Barb. (N. Y.) 9, where it is Said no action for loss of service can be sustained in case of instantaneous death, because there is no time during her life when it can be said that the husband has lost the society and service of his wife In consequence of the injury complained of. Recovery can be had if death is not instan taneous; Eden v. R. Co., 14 B. Monr. (Ky.) 204 ; Hyatt v. Adams, 16 Mich. 180; Green' v. R. Co., 28 Barb. (N. Y.) 9. See McMillan. v. Luniber Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947. In Ohio the action can be maintained in the courts of that state only when the deceased was an Ohio citizen•; Baltimore & 0. R. Co.