Tilley v. . the Hudson River Railroad Company

24 N.Y. 471, 23 How. Pr. 363

• Court: New York Court of Appeals
• Decided: June 5, 1862
• Status: Published

Opinions

Dbnio, J.

One ground of estimating the damages, which the jury were instructed to take into consideration, was the expectancy of the children of the deceased in the fruits of her earnings in the business of making shirts, in which she was engaged. It was conceded that these earnings, immediately upon being realized, became the property of her husband; and that the only way in which the children could be benefited by them would be by succeeding to them as the next of kin Of their father, in the event of his continuing to own them, of their surviving him, and of his dying intestate. It seems to me that this is too remote, and that it is not within the meaning of the statute. If the children should have become the possessors of these anticipated earnings, it would not be as the next of kin of their mother, but on account of their sustaining that relation towards their father. The gravamen of the claim in that aspect is, that, by the wrongful act of the defendants, they have been cut off from the succession to wealth, which, but for the untimely death of their mother, occasioned by that act, she would or might have earned. But this injury does not happen to them as her next of kin. In that character, it would be unimportant to them whether their mother continued to realize earnings or not; for all such earnings would immediately vest in the plaintiff, as husband, and could never come to them as her next of kin. The.construe-. tian of this statute,- it must be admitted, involves great difficulties; and the grounds and measure of damages cannot always be determined by the application of the ordinary rules of the common law. If the deceased in this case had been a widow, and had been engaged in a profitable business, rendering it probable that, if her existence should be prolonged to the average period of life, she would' acquire wealth, Tam not prepared to deny but that her death, by the wrongful act of another, would entitle her children to damages under the provisions of this act, on account 6f being thus deprived of the probable succession-; for though the cause and the effect would be too remote from each other to found a claim to damages by the rule of the common law, such a ground of damages may have been within the contemplation of the legislature in passing the statute. Next of kin are embraced in its language, as parties who may be pecuniarily injured by the death of a person to whom they stand in that relation; and it is not required that the degree of kindred should be such'as to create the duty of sustenance, support or education. It is well settled, that the survivorship of a wife is not essential to «the maintenance of the action. '(Oldfield v. The N. Y. H.R. R. Co., 14 N. Y., 310; Quin v. Moore, 15 id., 434.) Suppose the only kindred to be collaterals, between whom and the deceased there was not legally or conventionally any connection which would impose such duties upon him; yet, by the terms of the act, damages in such a case must still be measured by the pecuniary injury resulting to such next of kin. As regards the existing property of the deceased, they would not be "pecuniarily injured by his death; but, if he left no will, they would be immediately benefited by the amount of the property he then possessed. The only loss such parties could sustain would be of the further accumulations, which it may be supposed he would have added if he had continued' to live, and which might, at his more remote decease, have devolved upon them. This is sufficiently vague and uncer-. tain as. a ground of damages, and could not be allowed, except on account of the peculiar provisions of the statute, and the impossibility of giving it effect in certain cases, except under. such a construction. But the rule laid down at the trial allowed damages to be given upon quite a different ground, involving another series of contingencies. At the death of the victim of the defendants’ negligence, the next of kin of the deceased are definitely determined, and are capable of immediate.ascertainment; but it would then be quite impossible to determine who will be the next of kin of the husband, and entitled' to succeed to his estate, when at some more distant and uncertain period he comes to die. Those who now are presumptively such, may or may not then be alive; or if alive, their number may bé increased by the birth of others, or another share in his estate may arise in the person of a second wife. The rule of damages laid down would, in my judgment, be far too speculative and uncertain for actual application.

It will not be essential to pass upon the other exceptions, except so far as may be useful for the purposes of another trial. We think it was not improper to allow the plaintiff to show the habitual occupation and employment of the deceased, for the purposes for which it was offered and received on the trial, namely, to show her general capacity and relation to her family. It is true that the testimony on that point was made to assume proportions beyond what seems to have been necessary for the purposes mentioned; but, it being competent, it was for the judge to determine the. extent to which the examination might be carried.

The injury to the children of the deceased by the death of their mother was a legitimate ground of damages; and we do not agree with the defendants’ counsel, that they ought to have been nominal. The difficulty upon this point arises from the employment of the word pecuniary in the statute; but it was not used in a sense so limited as to confine it to the immediate loss of money or property; for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death ©f the person from whom they would have proceeded; and the word pecuniary was used in distinction to those injuries to the affections and sentiments which arise from the death of relatives, and which, though most painful and grievous to be .borne, cannot be measured or recompensed by money. It excludes, also, those losses which result from the deprivation of the society and companionship of relatives, which are equally incapable of being defined by any recognized measure of valúa But infant children sustain a loss from the death of their parents, and especially of their mother, of a different kind. She owes them the' duty of nurture and of intellectual, moral and physical training, and of such instruction as can only proceed from a mother. This is, to say the least, as essential to their future well-being in a worldly point of view, and to their success in life, as the instruction in letters and other branches of elementary education which they receive at the hands of other teachers who are employed for a pecuniary compensation. Suppose a person under obligation to furnish a minor apprentice with common school instruction for a given period: would not the violation of that duty furnish a claim for damages? The injury would be of the same character which a child suffers from the loss of the training and instruction which it is entitled to receive from its parents. The injury in these cases is not pecuniary in a very strict sense of the word, but it belongs to that class of wrongs .as distinguished from injuries to the feelings and sentiments; and in my view, therefore, it falls within the term as used in the statute. It is argued by the defendants’ counsel that there should be no recovery on these grounds, because the father is obliged to provide what the children have been deprived of by the loss of their mother. But this is not an adequate answer. The children have been deprived of that which they were entitled to receive, by the wrongful act of the defendants. Their loss- may or may not be made up to them from another source; but, in the meantime, they are entitled to a fair and just compensation from the wrongdoers by the provisions of this statute. The damages given by the statute are the, pecuniary injuries sustained by the widow, and the next of kin of the deceased resulting from such death; and which next of kin, in the present case, are the children of the deceased. The recovery must, therefore, be confined to the pecuniary injuries which they and they only have sustained.

The judgment of the Supreme Court must be reversed and a new trial ordered.

Davies, Sutherland, and Allen, Js., concurred; Could, J., was for reversal, on the ground that only nominal damages were recoverable.