82 N.Y.S. 912 | N.Y. App. Div. | 1903
Plaintiff’s- intestate was killed on January 8,1902, in a railway collision which occurred in the tunnel of the defendant in the city of New York. On the trial it was admitted by the defendant that plaintiff’s intestate came to his death through the negligence of the defendant, and the only question at issue and litigated upon tlie trial was the amount of the .damages which the plaintiff was entitled to recover. Several questions are presented by this appeal which áre not necessary to be discussed, as we have reached the conclusion that the judgment must be reversed for prejudicial error committed in the reception of evidence and in the charge of the court respecting the rule to be applied in awarding damages.
Walter H. Capen was called as a witness and testified that he was in business at 60 Pearl street, in thé city of New York. It does not appear from the record what the business was which was carried on by the firm of which this witness was a member. It did, however, appear that the deceased occupied a confidential position with the firm, attended to correspondence and in making out consular invoices and house invoices, and that he was able to speak and write Fi’enéh, Spanish and a little Portuguese ; that the principal business
The quoted testimony was clearly incompetent for several reasons. The expectation of advancement in salary was based upon the prosperity of the business of witness’ firm, and this was made the subject of great uncertainty, as it appeared that the prosperity of the business was dependent upon the conditions of peace or war in the State of Colombia, which, if current reports might be considered, is still overshadowed in doubt. Possibilities of a prosperous business as a basis for predicating an award of damages upon which to found an increase in the payment of salary are too conjectural to be considered; but in. addition to this the witness did not limit his testimony to the possibilities of peace in Colombia and the prosperous business therefrom, but he was permitted to assume and testify as an absolute certainty that decedent at the time of the trial would have been receiving about $32 per week, and that he could reasonably except to receive within a short time from $2,500 to $3,000
Henry Parish was called as a witness for the plaintiff and testified-that he was the second vice-president of the New York Life ■ Insur-. anee and Trust Company; that such company had a large number of trusts; that he was familiar with the business and returns on the investment of trust funds. He was then asked and permitted to answer, over the objection and exception of the defendant, that the' rate of interest earned by trust funds at the present time was about three per centum. Upon this subject the court upon request of plaintiff’s counsel charged': “That in estimating the amount of damage to be awarded, the jury should take into consideration that the infant children will be entitled to two-tliirds proportion of such recovery, the amounts to be paid to the respective guardians.-, of the children, and that the amount of interest which can reasonably be expected to be obtained by guardians from trust investments, under the laws of New York at the-present time, does not exceed three per cent or three and one-lialf per cent per annum.” The defendant’s counsel asked the court to charge upon this subject:- “ That the amount of the income of the deceased to be considered' by the jury is the amount which he was receiving at or about the-time of his death.” The.court charged that' this was a circumstance' which might be considered by the jury. The defendant’s counsel-asked the court to charge that it “ must be limited to that.” The court declined so to charge and the defendant excepted. The' defendant’s counsel further asked the court to charge “ that the jury must not award such a sum, if- invested with reasonable safety,
By the express provisions of section 1904 of the Code of Civil Procedure the damages awarded “ to the plaintiff may be such a sum as the jury * * upon a trial * * * 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.” This provision of the Code and section 1903 were the subject of examination in Hinsdale v. N. Y., N. H. & H. R. R. Co. (81 App. Div. 617) and it was there held that evidence of the amount which it would cost to purchase an annuity equal to the amount of the decedent’s income, based upon the. probable duration of his life, had he"survived, was incompetent, and that the jury would not be justified in using such sum as a basis upon which to found their verdict. The infringement of the rule in that case was not so grievous an error as the infringement of the rule in the present case. Some courts have supported such a measure of damages (Baltimore & O. R. Co. v. Henthorne, 73 Fed. Rep. 634), but herein the proof was received and the jury authorized to find the earning power of the sum to be awarded and thereby to determine what sum would be necessary at the rate of three or three and one-half per cent to produce an income equal thereto or1 the proportion to which the children were entitled, which the deceased was earning and gave to - them during his lifetime. This was nothing more nor less than a capitalization of the earning power of decedent, and thereby making it the basis of an award of a sum of money, which, at that rate of interest, would produce the equivalent thereof. This rule of damage has been condemned. (Morrison v. L. I. R. R. Co., 3 App. Div. 205; Gregory v. N. Y., L. E. & W. R. R. Co., 55 Hun, 303.)
; It follows .that the judgment and. order should be reversed and anew trial granted, with costs to the-appéllant to abide the event.
O’Brien, Ingraham, McLaughlin and Laughlin, JJ., concurred.'
Judgment and order reversed and new trial ordered, costs " to appellant to abide event. ' '