Purcell v. Duncan Co. , 95 N.Y.S. 278 ( 1905 )

Parker, P. J.:

If it be conceded that the evidence in this case was properly submitted to the jury, with correct instructions as to the law of the case, and that such jury reached a correct conclusion as to the facts,, this judgment must be reversed for the reason that immaterial evidence was improperly received by the trial judge under the defendant’s objection.

The plaintiff being on the stand as a witness in his own behalf, testified that he was thirty-seven years of age and was married and had resided in Mechanieville six or seven years. He was then asked : “ What family have you ? ” This question was objected to by the defendant as immaterial. The objection was overruled and the defendant excepted. The plaintiff then answered: “ Two children. I had two children at the time of my injury. At that time I wag living on Saratoga Avenue, keeping house.”

There was no issue presented in this case to which this evidence was at all material. The action being to recover for his personal injuries, the question as to the size of the family or the number of children he had to support had no bearing whatever upon the question as to what was an adequate compensation for the injuries he had received. The elements which combine to determine that question are the same whether the plaintiff be married or single, rich or poor. (Shaw v. Boston & Worcester R. R. Corporation, 8 Gray, 45; 2 Wood Railroads [2d ed.], 1416; Abb. Tr. Ev. [2d ed.] 756, 757; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y, 77, 82.)

Such evidence being so clearly immaterial, it was a plain error to receive it; and the serious question is, was it a harmful error? Doubtless the trial judge gave it very little consideration, because it seemed at the time so utterly irrelevant as to be altogether harmless. But an examination of the authorities shows that usually upon appeal such evidence has not been so considered. It is unnecessary to discuss what was the purpose of offering such irrelevant testimony, or how much effect it actually had upon the amount which the jury have awarded to the plaintiff as compensation for his injuries. It clearly had a tendency to awaken their sympathies, and thus influence their judgment in the direction of a greater award, and so within the well-settled rule enunciated in Lipp v. Otis Brothers & Co. (161 N. Y. 559) it must be deemed a harmful error, (See, also, Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379, 384.)

The plaintiff contends that this evidence was not immaterial for the reason that a part of the injury complained of was the loss by plaintiff of his “ virile power ” and the fact that he had children before the accident went to- prove that at such time he could beget them.

In the first place no such special injury or loss is claimed or set up in the complaint. It was not a material issue, then presented in the action,, whether one of the elements of plaintiff’s injury was a loss of his power to beget children.'

But if such a question had been presented, the plaintiff was not asked whether lie had ever begotten any children. The inquiry was as to the extent of his family and the answer showed that he then had two minor children for whom he was then providing. Evidently the question was not directed to the proof of any fact affecting his “ virile power,” but was intended to show the extent of the burdens which he was called upon to support, and thus put before the jury an element bearing upon the question of his compensation which they had no right to consider. The question is practically the same in form, as the one in Pennsylvania Co. v. Roy (102 U. S. 451), which was condemned as being both immaterial and harmful, and held to require a reversal of the judgment. This case is cited with approval in Lipp v. Otis Brothers & Co. (supra), and is a controlling authority in this case. • '

For this reason the judgment must be reversed.

All concurred; Houghton, J., not sitting.