95 N.Y.S. 740 | N.Y. App. Div. | 1905
This is an administrator’s action to recover damages ■ for the death of plaintiff’s intestate who was killed through the alleged negligence of the defendant’s servants. The plaintiff was the father of the intestate.
Mrs. Flynn, the intestate, was twenty-six years of age at the time of the accident and in good..health. She was conducting a manicure business on her own account, and had been for two and one-half years next preceding her death,, Was proficient in business, regular in her attendance and' punctual in her business habits. She was a well-built woman of medium height. - Her habits were good. ■ She was married at the age of eighteen. She had not lived with her husband since 1895. Thereafter and until her death she resided with her parents. The negligence of the defendant and the absence of contributory negligence on the part of the intestate are conceded upon this appeal; ■ Ah the close of the plaintiff’s case the defendant consented to the direction of a verdict for the amount of 'the funeral ¿xpenses and to $100 as nominal damages-. Plaintiff asked'to go to the jury on the question of damages, and excepted to the .denial of his motion. The court directed a verdict, for $119.50, the funeral expenses,' and $100 nominal damages, being in all $219.50. Plaintiff duly excepted to the- direction and to the denial of his motion to set aside the verdict and for a new trial. The decedent left her surviving no descendant, but a husband and á father and mother: Section 1903 of the Code of Civil Procedure provides that the damages recovered in such an action as the one at bar “ are exclusively for the benefit of the decedent’s husband or wife and .next of kin, and, when they are collected, they must be distributed * * * ' as if they were unbeque.athed assets.” Section 1905 of said Code ..provides that “the term ‘next of kin’ as
Therefore, as section 1904 of the Code of Civil Procedure provides that “ the damages * * * may be such a sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is- brought,” the question in the ease at bar is limited to the consideration of the pecuniary injuries resulting from the decedent’s death to her husband, from whom she had been living apart for some years at the time of her death. It may be conceded that, in the absence of all proof of earning capacity or of any probability of the decedent’s life being of pecuniary value, the jury are not required as a matter of law to award substantial damages. The plaintiff attempted to make such proof. He offered to show what the average earnings of the decedent had been for every week for six months prior to her death, and excepted to the exclusion of the evidence. He put an'actuary on the stand and asked, “-Will you give me the probability of the life of a woman twenty-six years of age in good health ? ” This was excluded by the court upon-the ground that it was improper to leave to the jury the computation of damages from the probable life of the deceased and that it was immaterial; to which ruling plaintiff duly excepted. These two rulings were erroneous. They excluded two of the elements which have always been consideré! as proper
But in this case the question arises, whether, if the proof of the expectancy of life and of the earning capacity of the decedent had been admitted, the direction of a verdict for nominal damages would have been proper. We do not think it would. The statute prescribes that “ the damages awarded to the plaintiff may be sucha sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” The jury are the judges of the damages,' their verdict being subject to the supervisory power of the court, and unless there was no evidence of “pecuniary injuries,” it Would be. error to direct a verdict for a nominal amount. The decedent whs engaged in a separate business. She died intestate. Her personal estate vested on her death in her husband by virtue of his marital right, irrespective of the fact, that they were living separate and apart. That she might have made a considerable amount of money during her life, her earning capacity and expectancy of life having been proven, and might have died a natural death still intestate, seem to be no more uncertain contingencies than that infant's of tender years may growup, give their wages to their parents during their minorities and support them in an impoverished old age. In Birkett v. Knickerbocker Ice Co. (110 N. Y. 504) the decedent was the daughter of the plaintiff, four and
For the errors pointed' out, the judgment and order must be reversed and a new trial granted, with costs to the appellant tp abide the event.
O’Brien, P. J., Ingraham and McLaughlin, JJ., concurred; Patterson, J., concurred in result.
Judgment and order reversed, new trial ordered, cost's to appellant to abide event/ .
Code Civ. Proc. chap. 15, tit. 3.— [Rep.