Tilley v. . the Hudson River Railroad Company , 23 How. Pr. 363 ( 1862 )

The plaintiff's right, as administrator of his wife, to maintain this action, is settled by the cases of Quin v.Moore (15 N.Y., 432), Oldfield v. The Harlem R.R. Co. (4 Kern., 310). The right of the administrator to sue under the statute, these cases held, depends upon the question whether the deceased person could have maintained an action at common law, if the injury causing the death had not proved fatal. The exception, therefore, to the decision of the circuit judge, refusing to dismiss the complaint, is not well taken. The exceptions remaining relate to the principles governing the question of damages. The exceptions to the admission of evidence relating to the capacity and services of the deceased in the care and nurture and education of her children, and in the support of the plaintiff's family, and particularly in carrying on the business of making shirts, bosoms and collars, all present substantially the same questions which arise upon the charge, and need not be separately considered. If the case was put to the jury upon a correct theory, upon the question of damages, the objections to the evidence referred to in these exceptions were all properly overruled; and the exceptions are not well taken. In the case ofDickens v. The New York Central R.R. Co. (23 N.Y., 158), the action was by the husband, as in this case; but the deceased left no children, and her next of kin were sisters, who could not be next of kin to the husband; and it was held that the action could not be maintained by the husband for the loss of the services of his wife on his own account, and that the next kin of his wife had no interest in such injuries. But in this case, the deceased left a family of five children, who would be of kin to the plaintiff, and be entitled, upon his decease, to inherit his estate. The case of Dickens, therefore, is not a decision of the question, that the character, nature and value of the services of the wife was not admissible upon the question of damages, when the action is really brought for the benefit of her children.

The charge of the judge, to which there are various exceptions, taken as a whole, is substantially correct, if anything more than nominal damages are recoverable in such cases; and does not, I think, contain any erroneous direction. It states that the recovery in such an action can only be for the pecuniary loss sustained by the death; that the statute gives no right to recover for the pain and anguish of friends, or the loss of the solace and comfort which the children would have derived from their mother; and that the plaintiff could not recover anything as husband of the deceased.

That the jury should inquire what the deceased was worth to her children over and above the expenses of her own support and living: that this was to be determined by considering how long, in her state of health, she could probably have lived: that the earnings of the mother did not belong to the children, but to the plaintiff or her husband; and that the only interest the children had in such services depended upon the question how much they would tend to increase the estate of their father in view of the probability that upon his death the property of the plaintiff would go to her children — this is the substance of the charge; and while it is vague and somewhat indefinite, it is no more so than the act itself, and presents, I think, no single point that is clearly erroneous. The statute declares (Laws of 1849, p. 388,) that, in every action brought under said act, "the jury may give such damages as they shall deem a fair and just compensation, not exceeding $5,000, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person."

The statute gives no clear and certain rule of damages. It gives the action to the "widow and next of kin" of the person killed, seemingly as though no one could ever be killed except a man and a husband who might leave a widow and children. The husband is not named in the act, and no action is given to him for killing his wife, but the action being given to the "next of kin" in such cases, the damages must be determined upon the same principles, so far as they can be ascertained, that will apply when the husband is killed. If the deceased in this case had been a widow, supporting her children by her own skill and services, no doubt could exist that her death would be a pecuniary loss to her children upon the same principle, though probably not in the same degree, with the death of their father. The equity of the statute should be extended to, and would clearly embrace, such a case. The difficulty is to apply the statute to the case of the death of a mother of a family, the father being still living. On this point, I do not think that portion of the charge of the judge in which he stated to the jury that, in assessing damages, they might assume that the children of a family will succeed to their father's estate upon his decease, and that their pecuniary loss resulting from the death of their mother may be the amount that her earnings would ordinarily have added to the common stock, clearly erroneous.

It suggests to the jury an approximate rule for estimating the pecuniary loss sustained by this death, easily applied and much more certain and definite than any other that can be devised. I can conceive of no other practicable measure of damages, or rule to guide the discretion of a jury in such a case, having reference to the pecuniary loss of the children. It was not presented as a rule of damages binding upon the jury as matter of law, but as a rule to guide their discretion in carrying the statute into effect. The evidence given in respect to the capacity of the deceased and the value of her services in the support of the family was, therefore, properly received, as furnishing a proper item for consideration in estimating the compensation to be assessed to the next of kin. Our statute was taken from the English act known as Lord CAMPBELL'S act (9 and 10 Vict., c. 93), and should receive the same construction so far as they correspond in terms. The English act gives the action for the benefit of the wife, husband, parent and child, and directs that the jury apportion the damages to the parties respectively, for whom and for whose benefit such action shall be brought.

The case of Collon v. Wood (98 Eng. Com. Law, 566), was a case like this, where the person killed was the mother of several children; and the action was brought by the husband, as administrator of his wife, as well for himself, as the husband of the deceased, as for the benefit of his three infant children. At the trial, on the part of the plaintiff, it was proved that the deceased had by industry contributed to the extent of about ten shillings weekly towards the maintenance of the family, and a verdict of £ 25 was recovered; apportioned by the jury, £ 10 to the father, and £ 15 to the children. No objection was made to the evidence at the trial, and no objection that the recovery, both in behalf of the husband and the children, was not to be had upon the same principles. This case was reviewed in the Common Pleas, upon a motion for a new trial, and a new trial granted upon other grounds; but no suggestion was made in the argument, or in the opinion of the court, that the evidence, showing the value of the services, was improper, or that the children were not entitled to recover, upon the basis of the value of such services, precisely like the father.

Unless pecuniary loss can be inferred by the jury, and deduced from evidence, showing the value of the services or the worth of the person killed, upon such basis as was suggested in the charge of the judge in the case, the fair compensation of the statute, recoverable by the children of a deceased mother — the father living at the time — must necessarily be limited to their nominal damages. The legislature intended to give an action to the widow and next of kin whenever a clear and appreciable pecuniary loss was sustained by the death of any person resulting from the "wrongful act, default or neglect of another." They did not intend to give an action for speculative, or imaginary, but real loss, which could be shown and clearly determined with reasonable certainty.

It was impossible, perhaps, to define with exactness the rule of damages applicable to such case. There is an intrinsic difficulty about fixing in the statute any certain and definite rule on the subject. Much was, therefore, and necessarily must be, left to the jury. But in such a case, it is of the utmost importance that a jury, called upon to assess damages resulting from the death of a person, be guided by some clear instructions. It has been, and is, doubtless, a matter of much embarrassment to judges at the circuit to present this class of cases to juries upon clear and precise principles — such as shall confine them to the rule of pecuniary loss, and exclude the considerations relating to the pain, distress and anguish caused by the sudden death of a relative from the gross negligence of another, and a purpose to punish such negligence by a vindictive verdict. Such, doubtless, were the considerations controlling the jury, to a large extent, in this case. But this statute treats human life simply as an article of merchandise, to be paid for in a verdict for damages, at its precise pecuniary value. Such is the conceded construction and intent of the act. Upon this view of the statute, the verdict in this case is exorbitantly large, and, I think, should have been set aside by the Supreme Court, and a new trial ordered upon this express ground. The deceased was a woman, forty-eight years of age, in poor health, and not possessed of a strong constitution. I think the jury should, in substance, have been instructed to consider how much she could earn annually, over and above the expenses of her own support and living, upon the same principle as if she was hired for wages to render the same services for her life. This should be considered in respect to her age, state of health, and circumstances and condition in life; and then, what would be the present worth of such annuity, calculating the ordinary duration of human life. This would have fixed the value of her life. Assuming, which I think a very liberal estimate, that she would earn, upon an average, $100 a year for the period of her life, by the Northampton tables the present worth of an annuity of $100 for life, of a person aged forty-eight years — the age of the deceased — would be $970. If the jury had assessed the plaintiff damages at $1,000, it would perhaps have been a fair and liberal verdict.

But we cannot reverse this judgment upon any such ground. The judge was not asked to make his instructions more definite. He charged, as the defendant asked him to do, upon all the specific requests, except that the plaintiff could only recover nominal damages, and that the amount of the verdict could not exceed the value of the possibility that Mrs. Tilley might, but for the injury, have survived her husband, taken in connection with the pecuniary value to her children of her life, if she did so survive.

The judge refused to charge as requested upon this proposition, and, I think, properly. It did not present the true rule of damages. It suggested a rule too vague and indefinite for any practicable application. I think the judgment should be affirmed.

SELDEN, Ch. J., and WRIGHT, J., took no part in the decision.

Judgment reversed and new trial ordered.