76 N.J.L. 602 | N.J. | 1908
Lead Opinion
The opinion of the court was delivered by
This action was brought under the so-called “Death act” (Pampli. L. 1848, 'p. 151; Gen. Slat., p. 1188, pi. 10), and resulted in a verdict and judgment for substantial damages. It appears from the record and bill of exceptions that William L. Carter and Ida M. Carter, his wife, while traveling as passengers upon'an electric railway car operated by the defendant company, lost their lives through the derailment of the car. The resulting actions against the company were tried together. The defendant’s responsibilit3r
Motions were made for a nonsuit and for the direction of a verdict for the defendant upon the ground that there was nothing to show any pecuniary loss to the next of kin as a result of Mrs. Carter's death.
We think these motions were properly overruled. There was evidence to show that the children lived with their parents in the city of Camden in a home maintained with the earnings of the -father, and that -the wife performed- the household duties, except-that a woman was occasionally employed to do washing and cleaning. It was reasonably to be inferred that she took such care of her children-as a mother usually takes.
The statute provides that the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death to the next of kin. As was long ago pointed out by Chief Justice Beasley, this means “A deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased.” Paulmier, Admr., v. Erie Railroad Co., 5 Vroom 151, 158. This definition has been consistently adhered to in subsequent cases. - Demarest v. Little, 18 Id. 28, 30; Consolidated Traction Co. v. Hone, 31 Id. 444, 446; Cooper v. Shore Electric Co., 34 Id. 558, 567.
Under circumstances such as are here presented we think there is a reasonable inference that the continuance of the mother’s life would have resulted in substantial pecuniary benefit to the children. The statute does not require the plaintiff to show that the next of kin would probably have received from the deceased contributions of money or of things purchased with money.
In Gottlieb v. North Jersey Street Railway Co., 43 Vroom 480, this court decided that under the statute an action may be maintained by the administrator of a deceased wife for the
In the present case it is argued that the services rendered by Mrs. Carter to her .children were rendered in performance of the duty that she owed to her husband, and the suggestion is that the children’s expectation of benefit in this behalf was or ought to have been included in the action brought by the administrator of their father. The record before us does not disclose what was the outcome of the latter action. Nor, in our opinion, are we concerned with it. Each parent owes duties to the children, independent of the marital duties they owe to each other. The presumption is that the death of both parents is more detrimental to dependent children, from the pecuniary standpoint, than the death of a single parent only. What damages ought to be allowed for the death of either is to be regulated by instructions to the jury.
May v. West Jersey and Seashore Railroad Co., 33 Vroom 63, is cited as sustaining the proposition that pending the husband’s life the wife’s services in the household are due to him and are only incidentally beneficial to the children; and that the prospect that the wife would have survived the husband, whereupon her services would become a direct pecuniary benefit to the children, is too remote to be considered in fixing the pecuniary benefit of which the children are deprived by the mother’s premature death. In the case referred to the onty question for determination was whether the damages were excessive. The decision is not authoritative upon the question of the right of recovery, and in the discussion of that question the expressions in the opinion are not to be accepted without modification.
Moreover, if we were to treat the mother’s care of young children as bestowed, during the father’s lifetime, in performance of a duty owing to him rather than to them, the assumption would have little, if any, bearing upon the present case, for here the father’s life had already terminated before the issue was tried, and so his expectancy of life was no longer in the realm .of speculation. Not only so, but his death was
There was no error in the refusal of the'motions for nonsuit and for direction of a verdict in favor of the defendant.
The only other ground relied upon for reversal is the instruction of the trial judge to the jury respecting the damages to be allowed in the event of a verdict for the plaintiff. Taking the whole of the charge' together, we think it not open to reasonable criticism upon this point.
The judgment under review should be affirmed.
Dissenting Opinion
(dissenting). The beneficiaries in whose interest this judgment was recovered are the children of William L. and Ida M. Carter, both of whom were killed in the same railway accident. The jesulting actions against the company in the cases of both the father and the mother of the beneficiaries which, as stated in the opinion, were brought by the same administrator, in the same court, were tried together, and submitted to the" jury in a single charge, in which the rule for the admeasurement of damages in each case was laid down. In the father’s case the jury was instructed that in awarding the damages,'which were to be only of a pecuniary nature, they should take into consideration “the loss by these children of the maintenance and support of their father, the comforts and conveniences of home, the education of these children, and the provisions at his death from the accumulated savings of his income.”
In the case of the mother, which is the one before us on this writ of error, the jury was instructed “as to the other suit, the suit brought by the administrator of the mother, Ida M. Carter, you may award such sum as you think these children have lost by being deprived of her services, care and attention, which, had she lived, she would have given to them, and which now must be procured by them in some other way.”'
This instruction, which was specifically excepted to, is, in my opinion, an erroneous one that permitted, if it did not necessitate, a reduplication of damages. The concrete vice of the instruction is that if it is limited to damages of a pe
For this judgment in the case of the mother of the beneficiaries must stand either upon the theory that the father was living at the time of her death or that he was not—if the former, then, under the instruction of the court, the children were awarded damages which, in so far as they were susceptible of pecuniary assessment, they had not sustained; if the latter, they were awarded damages which, in so far as they were capable of pecuniary admeasurement, they recovered in the action for the father’s death] Whichever theory be adopted, a verdict rendered in accordance with the instruction under review would be founded upon an erroneous rule of damages. In my opinion the judgment should therefore be reversed.
For afir manee—The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill, J.J. 13.
For 'reversal—Garrison, Eeed, Yoorhees, J.J. 3.