Plаintiff’s decedent died November 29, 1950, as the result of injuries sustained the prior August 29 through the wrongful acts of defendants, as is said; and the action was brought to recover the pecuniary loss suffered by his widow and next of kin in accordance with R. S. 2:47-l et seq., as amended (the Death Act, so-called), and as weE damages for the consequent pain and suffering endured by the decedent himself.
The fatal injury came from the fall of a portion of a temporary wooden fence surrounding а school construction project then in process at the northwest corner of Maryland and Pacific Avenues in Atlantic City, New Jersey, which had been removed and put to one side by the defendant Peterson’s servants, at rest on the sidewalk against the adjoining fence, to afford access to the building site. The fence was erected by defendant J. & L. Construction Co., the general contractor. Peterson was a subcontractor for the brick work and masonry. At the time of the mishap, the defendant Edwin Smith, Inc., was engaged in delivering material by truck through the open gateway, which was approximately eight feet wide.
The gravamina of the complaint are the insecurity of the removed gate section of the fence, laid against both the general contractor and the subcontractor, and careless contact with the fence by Smith’s truck as it moved through the passway, whereby the gate fell and struck decedent as hе proceeded along the sidewalk. The general contractor and the subcontractor each paid $6,000 to plaintiff in exchange for a covenant not to sue; and the issue was then tried as to Peterson.
The jury were instructed that plaintiff was entitled “to only a single satisfaction” for the losses sustained, if occasioned by negligence, and in ease the issue of liability be resolved in favor of plaintiff, the assessment of damages must take into aсcount the payments made by Peterson’s co-defendants and cover the difference only if the' damages be found to exceed that sum, but if less than the sum so paid,
A motion by the plaintiff for a new trial was denied. Her appeal to the Appellate Division of the' Superior Court was certified here for decision on this court’s own motion.
I.
The first insistence is that the verdict is “inconsistent” and “irreconcilable” and of doubtful meaning, and therefore inadequate to sustain the judgment. The reasoning, in a word, is that there was a “general verdict” in favor of defеndant on the issue of liability, but that the jury’s response to the inquiry of the judge who received the verdict constitutes a finding of liability which “had been adequately compensated.” It is argued
contra
that the jury returned a general verdict in favor of the defendant Peterson as to liability, and that the answer to the inquiry of the judge who received the verdict suggests that the jury “improperly considered the plaintiff had already been sufficiently compensated by settlements with the other defendants in arriving at the verdict of fno cause for action,’ ” and “merely reflects improper processes of reasoning or incorrect application of the legal principles stated in the charge of the Court,” and
But it is obvious that the jury’s response to the judge’s interrogation as to the intent and significance of the deliverance cannot be ignored in determining the quality and content of the verdict. It is elementary that a verdict is to be read as a whole, in the light of the pleadings and the pertinent instructions of the judge, and given effect according to its plain intendment. The intent controls, if ascertain.able from the jury’s return. Malinauskas v. Public Service Interstate Transportation Co., 6 N. J. 269 (1951). And this without regard to whether the action was abortive or had the elements of a special verdict within the submission adequate to sustain a final judgmеnt.
It is a rule of general acceptance that, barring a .statute
contra,
a trial court may in its discretion inquire of .a jury, upon the return of a verdict, as to the grounds or principle upon which the verdict is based, and that no exception lies to the exercise of such discretion. The inquiry is to determine the intention of the arbiters of the facts, in aid ■of a proper judgment..
Pierce v. Woodward,
6
Pick.
206
(Sup. Jud.
1828);
Dorr v. Fenno,
12
Pick.
520
(Sup. Jud.
1832);
Smith v. Putney,
18
Me.
87
(Sup. Jud.
1841);
Sporr v. Spooner,
12
Metc.
281
(Sup. Jud.
1847);
Lawler v. Earle,
5
Allen
22
(Sup. Jud.
1862);
Walker v. Bailey,
65
Me.
354
(Sup. Jud.
1876);
Norris v. Haverhill,
65
N. H.
89, 18
A.
85
(Sup.
1889);
Germond’s Adm’r. v. Central Vermont R. Co.,
65
Vt.
126, 26
A.
401
(Sup.
1893);
Hart v. Brierley,
189
Mass.
598, 76
N. E.
286
(Sup. Jud.
1905). The practice .does not depend upon the consent of the parties. Yet the power
Here, the verdict is not vague or indefinite. The special finding thus related to the trial court is not at variance with the general conclusion that plaintiff had no cause of action against the defendant Peterson in respect of the subject matter of the complaint. These findings are entirely consistent and certain in their intendment and meaning, and adequate to support a judgment for this defendant. It seems to have been so regarded by the parties at the time. There was no suggestion of a need for clarification.
A verdict may be molded in consonance with the plainly manifested intention of the jury, and judgment entered accordingly.
Rossman v. Newbon,
112
N. J. L.
261
(E. & A.
1934);
Slate v. Jankowski,
82
N. J. L.
229
(Sup. Ct.
1912);
Humphreys v. Mayor and Council of Woodstown,
48
N. J. L.
588
(E. & A.
1886);
Stewart v. Fitch & Boynton,
31
N. J. L.
17
(Sup. Ct.
1864). And a judgment may be
It will not be amiss to say, in passing, that what transpired here proves the policy of
Buie
3 :38-2, directing that every verdict be returned by the jury to the judge in open court. But in the particular circumstances, we find no occasion to invoke the regulation. The parties consented that the verdict be taken by the county judge in the absence of the trial judge, and non-compliance with the rule is not
II.
But it is urged that, even so, there was prejudicial error in the overruling of evidence tending to show pecuniary loss suffered by an adult son of the deceased as the result of his death, in that such proof would enhance the damages found by the jury to have been fully compensatеd by the co-defendants.
The question concerns the meaning of the amendment of section 4 of the Death Act
(B. 8.
2:47-4) effected by chapter 429 of the Session Laws of 1948 (L. 1948,
¶.
1670), considered in relation to the preexisting section 5 of the original act. The amendment provides that the recovery under the act shall be for “the exclusive benefit of the widow, surviving husband, dependent children of the decedent, or the descendants of any such children, the dependent natural parents of the decedent, the dependent adopting parents of a legally adopted child and the dependent next of kin of the decedent,” excluding “the natural parents of a decedent who was legally adopted.” The distribution is thereby directed to be made “in the proportions provided by law for the distribution of personal property of intestates, except that where the decedent leaves a surviving widow or husband, but no dependent children or descendants of such children, the widow or surviving husband shall be entitled to the whole of the amount so recovered.” It is said that “there is no relationship between the damage suffered by specific next of kin and the amount actually distributed to them, as under the English Death Act”; and that the rule of damages set down in section 5 is not affected by the amendment of section 4, and so dependency has no place in assessing the damages
The intent of the original statute was to give a right of action for the present value of the “pecuniary injuries” suffered by the “widow and next of kin” of the deceased.
L.
1848,
p.
151. In 1913, the act was amended to include the “surviving husband” in the beneficiary class.
L.
1913,
p.
586. See, also,
L.
1917,
p.
531. The pertinent provisions of the act were incorporated in the Revision of 1937, in two separate sections. Sectiоn 4 defined the beneficiary class; section 5 prescribed the rule of damages. In both sections the references to the beneficiaries are in identical terms. Recovery was to be had for the pecuniary injuries sustained by the “widow, surviving husband and next of kin” of the deceased, and distributed to them according to the statute of distribution. The 1948 amendment of section 4 redefined and qualified the beneficiary category to include only the enumerated depеndent next of kin. The right of the widow or surviving husband to partake of the benefits of the statute is not conditioned on dependency. Tire amendment of section 4 necessarily modified
pro ianto
the provision of section 5. This rule of interpretation serves the indubitable reason and spirit of the amendment; It is not to be supposed that the Legislature designed to measure the worth of the beneficiaries’ expectancies by pecuniary losses sustained by non-beneficiaries. The evident policy of the statute is the recovery of damages for the pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal. Damages are assessed to compen
“It also seems to me that the literal language of the -statute is to be followed, that is, a right of action exists in all cases in which such right would have existed in the party injured if death had not ensued, and that all the next of kin who would take in case of intestacy 'belong- to the class of persons who, it is competent for a jury, under the given circumstances, to say, have sustained a pecuniary injury resulting from the death of their kinsman.” Paulmier, adm’r. of Carhart, v. Erie R. Co., 34 N. J. L. 151 (Sup. Ct. 1870).
This is not a mere survival statute. It does not abolish'the rule that a personal action dies with the person injured. The act creates new causes of action for the loss suffered by the designated beneficiaries, measured by the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased.
Paulmier, adm’r., v. Erie R. R. Co.,
cited
supra; Carter v. West Jersey & Seashore R. Co.,
76
N. J. L.
602
(E. & A.
1908);
McStay v. Przychocki,
7
N. J.
456 (1951). It is a corollary of these considerations that if none of the specified class of beneficiaries has sustained a recoverable pecuniary loss, the action will not lie. Compare
Wilder v. Charleston Transit Co.,
cited
supra.
This is fundamental in the statute. The wrongdoer is not answerable .for the injury suffered by the next of ldn
But, in virtue of the spеcific terms of the amendment of section 4, the recovery is for the “exclusive benefit” of the enumerated beneficiaries; and section o is qualified accordingly. Por the force of this provision, see Wilder v. Charleston Transit Co., cited supra. Section 5 is applicable only insofar as it is consistent with the later expression of the legislative will embodied in the amendment of section 4. Sutherland’s Statutory Construction (3d ed.), section 1935. Consistency is the element which determines the operation of an amendment upon related sections of the same statute and acts in pari materia. Farrell v. State, 54 N. J. L. 416 (Sup. Ct. 1892). The sections are to be read together and reconciled in keeping with the reason and policy of the amendment. In re Huyler, 133 N. J. L. 171 (Sup. Ct. 1945); In re Cole’s Estate, 235 N. Y. 48, 138 N. E. 733 (Ct. Apps. 1923). The reconciliation of apparently conflicting statutes, judged by the letter alone, to conform to the spirit of the legislation as a whole is a common exercise of the judicial interpretive function.
Being remedial in nature, the statute is to be liberally construed and applied to effectuate its beneficent object.
Haggerty v. Central Railroad Co.,
31
N. J. L.
349
(Sup. Ct.
1865);
Cooper v. Shore Electric Co.,
cited
supra; Gottlieb v. North Jersey St. Ry. Co.,
cited
supra.
But the act is in derogation of the common law; and the terms definitive of the persons or classes of persons for whom the remedy is provided are not to be expanded beyond their fair intendment.
Ross v. Miller,
115
N. J. L.
61
(Sup. Ct.
1935). So, also, barring a definite expression
contra,
the restriction of the class of beneficiaries to certain dependent next of kin constitutes a limitation of damages to the pecuniary loss sustained by such beneficiaries, in keeping with the preexisting statutory policy. A purpose to enlarge the damages beyond the actual pecuniary loss suffered by the designated beneficiaries cannot be left to inference more or'less uncertain.
It follows that the remedy provided by the statute, as thus amended, is not available to an adult child unless he was a dependent of the deceased parent at the time of the parent's death. Damage is not implied from the relationship alone. And pecuniary loss is not in itself enough to bring such a child within the beneficiary category. There cannot be a recovery of the reasonable value of the expectancy unless there be dependency in fact. The dependency of the adult child must be actual, and not legal merely, аlthough partial dependency in substantial degree will meet the statutory criterion. Benefit and dependence are not synonornous terms. Compare
Havey v. Erie R. R. Co.,
88
N. J. L.
684
(E. & A.
1916). Dependency in the statutory intendment has reference to maintenance. It is requisite that there be some degree of dependency in this sense or the statutory condition is not met. Occasional gifts or contributions made by the parent to the child do not, without more, establish such dependency аs will give rise to a pecuniary interest in
It is conceded that here there was no dependency between the adult child and his deceased parent; and the exception therefore is devoid of substance.
This is the sense of the 1948 amendment of section 4. The statute has lately been revised to provide that the recovery shall be for the exclusive benefit “of the persons entitled to take any intestate personal property of the decedent,” measured by their pecuniary injuries as a result of the death, and that if “any of the persons so entitled were not dependent on the decedent at his death, the remainder of the persons so entitled shall take the same as though they were the sole persons so entitled,” but that if “all or none of the persons so entitled were then dependent on him, they shall all take as aforesaid.” Title 2A :31-4, 2A :31—5. This revision did not become effective until January 1, 1952, and therefore has no application here.
III.
The remaining assignments of error relate to the adequacy of the instructions as to the responsibility of the defendant Peterson under the doctrine of respondeat superior and the sufficiency of the evidence to sustain what is deemed to be a verdict for this defendant on the issue of liability. Since there was a special verdict which resolved that issue in favor of plaintiff, there is no occasion to consider the sufficiency of the charge.
The special verdict returned by the jury subjects the defendant Peterson to a judgment for nominal damages of six cents and costs. Ordinarily, nominal damages are recoverable where the evidence establishes the breach of a
The judgment is accordingly amended to conform to the special verdict as molded to effectuate the expressed intent of the jury, and, as so amended, affirmed, with costs to plaintiff in the County Court. Neither party shall have costs in this court.
For amendment and affirmance—Chief Justice Yanderbilt and Justices Case, Heher, Oliphant, Wacheneeld, Burling and Ackerson—7.
For reversal—None.