Appellant urges on this court that the Appellate Court did not consider the seventh instruction asked by it (appellant) and refused by the circuit court, which was°as follows:
“The court instructs the jury, that if you find for the plaintiff, in considering the question of damages, unless it appears from the evidence that the brothers and sisters of the said Estiemes Then, deceased, were in the habit of claiming and receiving pecuniary assistance from her, you will not take into account anything which they may have lost by reason of her death, in assessing the damages in this case. ”
The action was by the father, as administrator, and the declaration avers the deceased left a father, brothers and sisters, etc. The damages to be found by the jury were to be in gross. The jury were not to apportion the amount recovered among the father and the brothers and sisters,—that was the province of the probate court. This instruction, which sought to instruct as to the question of damage, entirely ignored the existence of the father and his right, and was misleading. It was not error to refuse it.
As to other questions discussed by the Appellate Court, we are content with its opinion, and concur therein.
The judgment of the Appellate Court is affirmed.