Stiles v. Tilford

10 Wend. 338 | N.Y. Sup. Ct. | 1833

By the Court,

Sutherland, J.

The cause of action was abundantly made out, independently of the testimony objected to. The daughter says expressly that she returned to her father’s house because she was incapable of working as usual, and that after her return, she was unable to earn her subsistence as formerly. Here is express loss of service, and all this was before she arrived at the age of 21. The testimony objected to was merely in aggravation of damages, and we all know that although loss of service must be shown, yet that when any considerable damages are given, they are given not to cover the actual loss sustained, but for the injury to the parental feelings. 4 Cowen, 412. 5 id, 106. 1 Wendell, 447. 3 Campb. 519. 4 Cowen, 355. 2 Phil. Ex. 157, and cases there cited. The action is altogether anomalous in its character, and the ordinary rules of evidence cannot in all their strictness be applied to it, without defeating its essential object. No separate action could ever be maintained for the expenses and loss of service incurred after the commencement of this suit; the objection therefore does not lie, that the defendant may be made to pay twice for the same damages. According to the strict rules of evidence, perhaps the testimony objected to was inadmissible ; but, I am inclined to think, we should be justified in saying that, from the nature of the action, it is to be intended that the evidence had little or no influence on the verdict of the jury, and that a new trial ought not therefore to be granted. This principle is applied in motions in arrest of judgment, where damages are laid subsequent to the commencement of the action, or previous to the plaintiff having any right of action. In such case, if the matter is laid under a scilicet, the court avail themselves of that circumstance to say, that it is not to be intended that the jury took it under their consideration. 2 Saund. 171, a. note 1, and particularly 171, c. of same note. 1 Chitty's Pl. 384 to 390. 7 Wendell, 193.

Upon the case, the charge of the judge is said to be erroneous. It is in some part of it expressed in strong terms, but I perceive no error in it which calls for, or would justify the granting of a new trial.

Motion for new trial denied.