Schell v. Plumb

16 Abb. Pr. 19, 46 How. Pr. 11

Opinion

By the Court.

Footnotes

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Miller, P. J.

This action was brought for damages sustained by a breach of a contract made by the defendants’ testator, in his life, for the support of the plaintiff, and the main question to be determined is, whether an action for entire damages can be maintained for a breach of a contract of this -character. While the question is not entirely free from embarrassment, and there are difficulties in many cases in recovering for prospective damages, yet the rule is well settled that such damages may be allowed. In actions for personal injuries occasioned by another, •such- damages frequently constitute no inconsiderable portion of the amount to be recovered, and must be estimated somewhat upon evidence which forms no very certain basis for accounts and careful calculation. More reliable and satisfactory evidence is furnished in the case at bar, than is usually presented in cases of this character, and I am unable to discover any valid reason why the plaintiff could not recover one entire amount, instead of being compelled to bring separate actions from time to time for separate and distinct breaches of the contract; thus causing a multiplicity of suits which it is the policy of the law to discourage. The value of the support of an aged person is not difficult to estimate, and in accordance with well established rules which the courts have sanctioned, the value of the life itself can, without much difficulty, be computed.

With evidence tending to show both these essential elements of the plaintiff’s right to a recovery of damages, I do not think that it can be fairly claimed that the damages recovered in this case are so uncertain, speculative, and conjectural, as to be beyond any recognized rule of law.

In Shaffer v. Lee (8 Barb., 412), an action was brought upon a bond to furnish to the obligee and his wife a support during their lives, and it was held that it was an entire contract; that a failure by the obligor to provide for the obligee and his wife, according to the substance and spirit of the covenant, amounted to a total breach, and that full damages might be recovered for the future as well as the past. The learned judge, who wrote the opinion in the case last cited, remarks, that when the neglect or misconduct of the defendant is such that the plaintiff may consider it a total breach, entire damages may be recovered.

The distinct question, now considered, was presented upon the trial of that case, and it is an authority directly in point. See also, Dresser v. Dresser, 35 Barb., 573.

There was no error, I think, in introducing the Northampton tables as evidence, and in reading from them so much as showed the probabilities of the life of a person of the age of the plaintiff. These tables are used for the information and guidance of courts of justice, in determining the probabilities of human life and the value thereof, and furnished to the jury some informasion which rendered material aid in forming a conclution as to the "amount of damages in the plaintiff’s case.

They are the results of careful inquiry and the closest calculations of experienced men, which have been adopted by the courts as the most accurate means of estimating the moneyed value of lives, and I see no objection to their introduction as testimony.

The evidence of Robinson to contradict Harris, was I think, properly received. Harris’s testimony tended to contradict the plaintiff’s evidence as to certain facts, and on cross-examination he denied that he had said that the plaintiff ought to have one thousand dollars out of the estate of the testator.

Such a declaration would have been inconsistent with the testimony which he had given, and, I think, it was competent to contradict him in this respect, by showing that he had made such a statement.

Upon principle, without reference to authority, it seems to me it is very clear that it is proper to show that a witness has made a statement inconsistent and irreconcilable with the facts to which he testifies ; and if he denies that he has made any such statement then to show that he has—and it matters not whether it is a statement of a-fact or the expression of an opinion, if it be adverse to the story which he has narrated. If it be an opinion,in direct conflict with his evidence, it would clearly tend to impair the credit of the witness to some extent, and in many cases, as much, perhaps, as if it was a fact.

I think the judge properly refused to charge as re quested, that if the contract was to provide the plaintiff with a home in the family of the deceased, his death terminated the liability. The purport of the contract,. if any was made, was to support the plaintiff during her life, and the general character of the evidence was to that effect; and even if it had been confined to his own family, as it was for the life of the plaintiff, I think that the testator’s death would not terminate the obligation.

There was no error in the charge, or in any of the rulings upon the trial, and judgment must be ordered on the verdict for the plaintiff, with costs.

Present, Miller, P. J., Daniels and Danvorth, JJ