Lange

This action was brought to recover damages for the death of plaintiff's son, which it is charged was caused by the wrongful act of the defendant.

1. The first point, although apparently based upon the alleged insufficiency of the evidence, is that the jury was erroneously instructed that they could allow exemplary damages if the act causing death was wanton, cruel, and malicious.

I think this instruction erroneous, and that it was probably given under some misapprehension as to our statutes upon the subject. It has been uniformly ruled that the action provided for in section 376 of the Code of Civil Procedure, is a new action and not the action which the deceased might have brought for the wrong had he survived. Only such damages can be recovered *391 as the statute authorizes, and, in the absence of an express provision authorizing a different rule, the only damage allowed is the probable value of the life to those in whose behalf the action is brought. Of course, this cannot include any grievance personal to the deceased, or any damage allowed in the interest of the people as punishment. The relatives, or the representative in their behalf, can recover the value of that which…