Farley v. New York, N. H. H.R. Co. , 87 Conn. 328 ( 1913 )

The defendant assigns, as reasons of appeal, the failure of the trial court to instruct the jury as requested, certain instructions as given, rulings upon the admission of testimony, and the denial of motions in arrest of judgment and to set aside the verdict.

The first paragraph of the finding certifies that an annexed exhibit contains a correct statement of the evidence and rulings, and directs that such exhibit be printed as a part of the record. Here is a sufficient certification of the rulings for the purposes of the appeal from the denial of the motion to set aside the verdict.Farrington v. Cheponis, 84 Conn. 1, 4, 78 A. 652. Such certification, however, although embodied in the finding, serves no useful purpose in connection with the appeal from the judgment. The transcript is before us only as an incident of the former appeal, and its sole office is in that connection. Summa v. Dereskiawicz, 82 Conn. 547,548, 74 A. 906. In so far as information concerning what transpired upon the trial may be necessary for our guidance in the consideration of assignments of error, we are confined to such as may be embodied in the finding in the manner prescribed by statute regulating the preparation of findings. General Statutes, § 792.

Application of this principle operates to practically eliminate from the reasons of appeal some of the assignments of error, since the necessary data for their consideration is lacking. This, however, is not true of all or of perhaps the most important of the assignments. The finding apprises us of the defendant's requests to charge and of the charge as made. Those questions which relate to the appropriateness or adequacy of the charge as related to the cause of action set out in the complaint are thus sufficiently presented. The same is true of the rulings upon the admission of testimony. They are stated as required, and the complaint supplies all the other information necessary to pass upon their correctness intelligently.

In this connection we note that the finding contains a direction that the transcript of evidence and ruling be printed as a part of the record. The statute prescribes that it shall be certified and made a part of the record. The matter of printing it is specially provided for and ultimately rests with the parties. We assume that the intention of the judge was limited to making it a part of the appeal record, and that there was no purpose on his part to direct its printing at the expense of the State as a part of the finding. The former construction should be given to the language used.

The court's instructions upon the subject of the measure of damages were erroneous. The statute under which the action was brought, in so far as it provides for recovery for death, follows the lines of Lord Campbell's Act in England, and in its distinguishing features is identical with that Act. Michigan Central R. Co. v.Vreeland, 227 U.S. 59, 68, 70, 33 Sup. Ct. Rep. 192. It creates a right of action where there was none at common law, and one which is entirely independent of any which the deceased may have had in life and which comes originally to the personal representative by the operation of the statute, and not by the process of survival. It is one for the exclusive benefit of certain specified persons, and the damages recoverable are such as result to them by reason of their having been deprived through the wrongful death of the deceased of a reasonable expectation of pecuniary benefits attendant upon his continuance in life. American R. Co. v. Didricksen,227 U.S. 145, 149, 33 Sup. Ct. Rep. 224; MichiganCentral R. Co. v. Vreeland, 227 U.S. 59, 65,33 Sup. Ct. Rep. 192. The intention of the statute was to secure to certain surviving relatives of the deceased employee compensation for "the actual pecuniary loss resulting to the particular person or persons for whose benefit an action is given." Gulf, C. S. F. Ry. Co. v. McGinnis, 228 U.S. 173, 175, 33 Sup. Ct. Rep. 426. The loss and its measure of damages are to be determined solely from the standpoint of the beneficiaries. It is their loss alone of which the statute takes cognizance, and the field of that loss is limited to what is termed the "pecuniary" as distinguished from the sentimental, or that which flows from grief or wounded feelings. Michigan Central R. Co. v. Vreeland,227 U.S. 59, 70, 33 Sup. Ct. Rep. 192.

The policy thus established and the situation thereby created are no new ones. Long prior to the enactment of the Federal statute they existed in England, under Lord Campbell's Act, and in those jurisdictions in this country where the distinguishing features of that Act have been enacted. Congress simply followed the lines of these statutes whose operation had been judicially declared repeatedly, and in its legislation adopted the policy promulgated in them. Blake v. Midland Ry.Co., 18 Q. B. (Ad. E. N. S.) 93, 109; Seward v. VeraCruz, L. R. 10 App. Cas. 59; Michigan Central R. Co. v.Vreeland, 227 U.S. 59, 68, 33 Sup. Ct. Rep. 192. The series of cases arising under the Federal statute, decided by the United States Supreme Court, already referred to, leaves no room for doubt either as to its scope and purpose, or as to the rule for the assessment of damages upon recovery under its provisions. It may not include compensation for what the deceased may have suffered in his lifetime, or for any loss accruing to his estate by reason of his life having been cut off. The recovery is strictly limited to compensation for the pecuniary loss to the beneficiaries, and can comprehend no other. Such being the rule, it follows that the amount recoverable in given cases must be influenced by the nature of the relation between the beneficiaries and the deceased, the obligations, moral or legal, naturally incident to such relation, the extent of the recognition which the deceased made of that obligation, his financial ability to make such recognition, his disposition to do so as shown by experience, and the thousand and one circumstances calculated to throw light in some substantial way upon the reasonable expectation of benefits of which the beneficiaries were deprived by the death. "The rule for the measurement of damages must differ according to the relation between the parties plaintiff and the decedent, `according as the action is brought for the benefit of the husband, wife, minor child or parent of minor child,' for the loss of services or support to which the beneficiary was legally entitled, or is brought for the benefit of a person whose damages consist only in the loss of a prospective benefit to which he was not legally entitled." Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 72, 33 Sup. Ct. Rep. 192. See also Fithian v. St. Louis S. F. Ry. Co., 188 F. 842, 844.

Our statute giving a right of action for injuries resulting in death proceeds upon very different lines, and leads to results radically different from those accomplished by the Federal statute. In Kling v. Torello,ante, 301, 87 A. 987, we had occasion to notice at some length the extent of this difference, not only in respect to the theory upon which the two enactments proceed, but also in respect to the consequences of their concrete application. We saw that it was not one of mere form or expression, but that it was fundamental, and productive of practical consequences, and especially so in the matter of the basis of recovery and in the measure of compensation to be awarded. We need not repeat what was then said, or restate the Connecticut rule defining the extent of recovery further than to recall that its controlling feature, entirely foreign to Lord Campbell's Act and statutes of that general class, is that the damages recoverable are to be measured from the standpoint of the deceased, and compensation awarded upon the basis of the loss suffered by his estate.

The court in its charge overlooked this vital difference between the Federal statute and ours, and erred in instructing the jury to award such damages as would make good the loss sustained by the decedent's estate as being substantially the same thing as compensation for the pecuniary loss to the surviving beneficiaries, and then proceeding to direct particular attention to certain matters as deserving of consideration, which are those of chief importance under our law, while entirely ignoring others of equal and vital importance under the Federal statute. Defendant's requests to charge called attention to some of these matters. The jury should not have been instructed to assess the damages upon the basis of the loss to the estate of the deceased, but upon that of the pecuniary loss to the beneficiaries predicated upon their having been deprived by the death of a reasonable expectation of pecuniary benefits. Touching this subject the defendant's requests 19 to 21 should not have been disregarded. These requests embodied a substantially correct statement of distinctly pertinent principles of which the defendant was entitled to have the jury informed, with such added explanation as to what the law means by "pecuniary loss," as that phrase is used in this connection, as was calculated to lead to an intelligent application of the rule. Michigan Central R. Co. v. Vreeland,227 U.S. 59, 33 Sup. Ct. Rep. 192; Hale on Damages (2d Ed.) p. 426 et seq.

There was error in the admission of the New York statute, and in not withdrawing it from the jury's consideration. We have no occasion to determine whether the reference in the Federal statute to statutes enacted for the safety of employees comprehends State enactments. The New York statute admitted in evidence does not deal with a situation such as the plaintiff complains of, and defendant's counsel were quite right in contending that it was irrelevant, and in asking that the jury be told to dismiss it from consideration as possessing no importance. Framed to regulate the operation of roads operated by steam, it aims to protect trainmen from structures which span tracks and constructions which extend across them. A warning signal is to be placed at every overhead road, bridge, or structure crossing the railroad. Its purpose was accomplished by the maintenance of the familiar "tell-tale" to announce the proximity of overhead danger. Constructions which follow the line of the tracks, foreign to steam operation, until quite recently unknown to railroad service and unknown when the Act in question was enacted, do not come within its language or intent and its provisions are not appropriate for protection from them. To convert the statute into one demanding warning signals suitable and effective for protection against overhead wires suspended along the line of railroad tracks for the electric operation of transportation, is to enlarge its scope by judicial legislation, to fit situations, which were plainly never contemplated, under the guise of giving to its language an interpretation not consistent with its natural import, and by attributing to it a purpose manifestly never intended.

The questions propounded to the widow of the deceased upon cross-examination, as recited in the finding, were improperly excluded. They were distinctly relevant as bearing upon the pertinent inquiry as to the extent of the pecuniary benefits reasonably to have been expected by her, had her husband lived, of which she had been deprived by his wrongful death. There was no better way of judging future expectation than by past experience, and few lines of inquiry could well be more illuminating as to what of pecuniary or material worth a wife might reasonably hope for from her husband, consistent with his means and ability, than one which disclosed the character of their relations and feelings toward each other.

Since a new trial must be ordered, it is unnecessary to inquire whether the complaint was sufficient after verdict to support a judgment. It is clearly defective for the reason that it contains no allegation that the deceased left a surviving widow, child, parent, or next of kin dependent upon him. Unless there was such survivor, there was no cause of action. The situation is very different under the Federal statute from what it is under ours, where, failing other beneficiaries, the amount recovered goes to the heirs at law of the deceased to be divided in accordance with the statute for the distribution of intestate estates. "In the absence of anything to the contrary it will always be presumed that if there is no widow or husband or lineal descendants, there are heirs to whom a distribution of personal estate can be made." Pitkin v. New York N.E. R. Co., 64 Conn. 482, 487, 30 A. 772; Budd v.Meriden Electric R. Co., 69 Conn. 272, 284, 37 A. 683. There is no basis for a presumption that one dying leaves a husband, widow, child, parent, or next of kin dependent upon him. Absence of allegation to that effect cannot, therefore, be supplied by presumption. It must appear in the complaint that such a person there was, or there is a failure to state a cause of action.Melzner v. Northern Pac. Ry. Co., 46 Mont. 277, 287,127 P. 1002, 1004; Thomas v. Chicago N.W. Ry.Co., 202 F. 766, 770; Bankson v. Illinois CentralR. Co., 196 F. 171, 172; Fithian v. St. Louis S. F. Ry. Co., 188 F. 842; Oulighan v. Butler,189 Mass. 287, 289, 75 N.E. 726; Tiffany on Death by Wrongful Act (2d Ed.) §§ 80, 181.

Other assignments of error either cannot be intelligently considered for want of adequate information in the finding, or need not be by reason of the conclusions we have reached.

There is error and a new trial is ordered.

In this opinion the other judges concurred.