162 Ky. 427 | Ky. Ct. App. | 1915
OpinxoN op the Court by
Affirming.
The first trial resulted in a verdict and judgment in appellee’s favor for $14,000.00 damages. On the second trial, occurring after the reversal of that judgment by this court, appellee recovered a verdict for $16,000.00 damages, and this appeal is prosecuted from the judgment entered upon that verdict.
It is not denied by counsel for appellant that the evidence authorized a recovery of damages for some amount, but insisted that the amount recovered on the last trial is grossly excessive, and that the trial court erred in instructing the jury as to the measure of damages. It is admitted that the deceased left but two children, a son and daughter, the former being an adult and the latter a married woman, and that neither of the children was dependent upon him for a support. So, in determining whether or not the verdict is excessive, only the damage sustained by the appellee widow can be considered.
It appears from the evidence that the deceased, Richard Dwyer, was a sober, industrious man, in good health and forty-five years of age at the time of his death; and that he was earning $150.00 per month regularly, and often would receive from ten to twenty dollars per month in addition for extra time, which made
The contention of counsel for appellant that the verdict of $16,000.00, if placed on interest at six per cent..-, would yield an annual income greater than the amount that the decedent’s widow would have received had he lived, and yet leave her the principal to dispose of at the time of her death, was declared in the case of C. & O. Ry. Co. v. Kelly’s Adm’x., 160 Ky., 296, to be without merit. In the opinion it is said:
“Appellant insists, under the principles of Gulf & Colorado Railway Co. v. McGinnis, 228 U. S., 173, and Mich. Cent. Co. v. Vreeland, 227 U. S., 59, that what the
Tfie age of tfie appellee widow at tfie time of fier husband’s deatfi was forty-three, two years younger than tfie husband, consequently, her expectancy of life was •practically the same as fiis; and the criterion of recovery being only tfie actual pecuniary loss resulting to tfie
Appellant’s complaint of the instruction as to the measure of damages is without merit. The law as given by the court on this feature of the case is found in instruction No. 4, which is as follows:
“The court instructs the jury that if they shall find for the plaintiff under instruction No. 1, then and in this event they will find for her such a sum of money as they may find and believe from the evidence will fairly and reasonably compensate Sarah Dwyer, the widow of, the decedent, for the pecuniary loss, if any, sustained by her by reason of his death. And in fixing said amount, if any, the jury are authorized to take into consideration the decedent’s age, his habits, business ability, earning capacity and the probable duration of his life, and also' the pecuniary loss, if any, which the said Sarah Dwyer as his wife has sustained by reason of being deprived of such support and maintenance, or other pecuniary advantage, if any, which the jury may find and believe from the evidence she would have derived from decedent but for the accident in question, not exceeding, however, the sum of the aggregate probable earnings of decedent but for the accident in question, nor more than the sum of $40,000.00, the amount claimed in the petition. And in the event the jury should find for and allow plaintiff any damages under this instruction, then and in this event they will confine or limit such recovery of damages . to the period of her dependency, if any, as the widow of decedent, and, in no event, for a longer period than her said husband would have probably lived but for the injury complained of and in question. The court instructs the jury that they cannot allow plaintiff any sum in damages for any pecuniary loss sustained by the children of the decedent, Eichard Dwyer, as the result of his injury and death. Said children are not entitled to recover any damage» for the injury and death of the decedent, and in the event that the jury should find for the plaintiff they will consider only the pecuniary loss,
The measure of damages as given in the above instruction is substantially the same as that contained in the instruction given in the case of C. & O. Ry. Co. v. Kelly’s Adm’x., supra, which received our approval in that case. It will be observed that the instruction did not,, as claimed by appellant’s counsel, require the. jury to. find for the decedent’s administratrix the aggregate sum of his earning capacity during the life expectancy, but limited the recovery so that it could not exceed the actual pecuniary loss, which 'the widow sustained by the decedent’s death, or in any event exceed the amount claimed in the petition, $40,000.00, which is, itself, less than the evidence showed the decedent’s earning capacity would have been during such expectancy. The record furnishing no reason for the reversal ásked, the judgment is affirmed.