29 N.Y. 252, Tilley v. Hudson River R. Co.

Citation:29 N.Y. 252
Case Date:March 01, 1864
Court:New York Court of Appeals

Page 252

29 N.Y. 252

WILLIAM TILLEY, Administrator, & c., of ANGELINE TILLEY, deceased,



New York Court of Appeal

March 1, 1864

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John H. Reynolds, for the appellant.

I. When this case was before this court on a former occasion, it seems to have been the opinion of a majority of the judges that the value of the wife's earnings, and the probability that her children would have received an estate, increased by such earnings, on the death or intestacy of the father, could not be considered in estimating the damages to be recovered. But that the injury to the children in the loss of maternal nurture and education, and in their moral and physical training was a pecuniary one within the intent of the statute, and a proper ground for damages; and also that evidence of the habitual occupation and employment of the deceased is admissible to show her general capacity and relation to the family. (Tilley v. H. R. R. R. Co., 24 N.Y. Rep. 471.)

1. It cannot be said, however, that all these questions were so far determined by the court as to preclude all further consideration of them, or that they are necessarily to control the case as now presented.

2. It will be seen by an examination of the report of the case that, on the first trial, the jury were instructed that in estimating the damages they might consider the increase that the earnings of the deceased would actually have added to the common stock in view of the reasonable probability that, upon the father's death, the children would inherit his property; and that they might estimate the fair pecuniary value of the chance that, in the ordinary course of things, the earnings of the wife would have gone

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through the husband to the children. To this the defendant excepted; and for this error in the charge a majority of the court granted the new trial, and this was the only question decided, or properly before the court for decision.

3. On the first trial, the jury were instructed that the plaintiff was not entitled to recover anything as for any value of the deceased to her children in their nurture or education. There was no exception to this by the defendant, by whom the former appeal was brought, and it could not properly be considered by this court. It does not appear that this ruling was excepted to by the plaintiff; but if it was it could make no difference, as the plaintiff had no appeal before the court. So far, therefore, as relates to the questions submitted to the jury on the second trial; and upon which the present verdict is founded, they are open to debate.

II. The statute under which this action was brought provides that 'the jury may give such damages as they shall deem a fair and just compensation, not exceeding $5, 000, in reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person. ' (Laws of 1849, p. 388.) It is not denied, and can not be, that the damages to be recovered in such an action must be strictly the result of a pecuniary injury. It is submitted that on the trial of this cause the jury were permitted to consider improper elements in estimating damages, and for which a new trial should be granted.

1. The jury were instructed, among other things, that in estimating damages they had a right to consider the loss which the children had sustained in reference to the supposed moral training which it is conjectured they would have received but for the mother's death. This was put to the jury as an element of pecuniary damage sustained by the children in consequence of the death of the mother.

2. In respect to the element of moral training, so far as such instruction has been given, up to her death, the evidence

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tends to prove that the children went to school on week days, and the mother did not make a practice of giving them any instruction except on Sundays, and sometimes she might have asked them questions from the bible. It was proved also that she was a member of the Baptist church, in which she took a part in the exercises, exhorting the meeting frequently and was the superintendent of a branch of the Sunday school. All this evidence was given under the objection of the defendants; and it is submitted that the evidence was inadmissible and the instruction to the jury based upon it improper.

3. There is no view of the case in which it can be properly said, as a matter of law, that the omission or deprivation of moral and religious instruction will necessarily involve a temporal and pecuniary loss, within the meaning of the statute, to the children of the deceased.

There is no rule in respect to the acquisition of money or property which enables any court to say, as a matter of law, that a person who has received proper instructions in morals and religion is any better calculated to earn money or acquire property than one who has never had such instructions; and the ruling of the circuit can not be sustained except upon the recognition of such a rule. It is a matter of the commonest observation that the intensely wicked-- those who have never received any moral or religious instruction, or who, having received it, have not profited by it, and do not practice its precepts-- are quite as successful in the accumulation of money and property as those who have not only had the most careful moral instruction, but who fully illustrate it in the practice of their lives.

5. It is not intended to deny the beneficial influence which such instructions may have upon the character of a man; but it is denied that their loss necessarily results in pecuniary damage. It is submitted also that such instructions, however carefully and persistently given, do not

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necessarily result in making a good citizen. The examples are numerous, as every man knows, where a life of infamy and crime has followed the most careful moral and religious nurture in infancy and childhood.

6. And all damages which are awarded by courts of justice are such only as naturally and necessarily result from the injury complained of. It does not follow that the loss of moral instruction will result in pecuniary damage, or that it will, of necessity, affect the personal character of the party deprived of the instruction.

III. In the present case the evidence does not show any very extensive employment of time, by the deceased, in the moral training of her children; nor does it appear that such instruction as was given would be approved by this court as orthodox, or meet the approbation of a moral and religious community; and it can not be seen whether the children would probably be more successful in after life with them or without them.

1. It is presumed that the plaintiff proved that the deceased was an active member of the Baptist church, for the purpose of impressing the jury with her religious character, and raising the presumption that she instructed, and would have instructed, her children in the cardinal doctrines of that denomination of christians, and that such instruction would have been in the highest degree beneficial to the children in after life.

2. If evidence of this description can be admitted in a case of this character, and be considered in awarding damages, it opens the question as to what particular kind of moral and religious instruction is best adapted to promote success in the acquisition of property and the entire range of controversy among religious sects will be thrust into the jury box and before the courts. If the fact that a deceased mother was a member of the Baptist church and instructed her infant children in that faith may be given in evidence by the plaintiff to enhance damages, it may be

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met by proof from those who think such instructions little better than heresy, and that children thus educated deserve no temporal success, and are in danger of eternal ruin. If it may be proved that a mother, killed by negligence, was of christian character and the member of a christian church, and damages recovered for the loss of moral training which such a mother would be supposed to give her children, the right to damages may be defeated altogether by showing that the deceased was an infidel in belief, and likely to instruct her children in her own faith, to their great detriment in every point of view.

3. Such considerations must also provoke inquiry as to instruction in the peculiar moral and religious tenets which are best calculated to promote temporal success; and endless controversy must arise, in respect to which no court of justice can establish a rule. For if it be true that the loss of moral and religious instruction is a ground of pecuniary damage in an action like the present, the damage will be larger or smaller as the instruction is more or less adapted to the future circumstances of the child; and in this respect the opinions of men will vary according to their own notions of morals and religion.

4. It is conceded that in this kind of action it is difficult to lay down a satisfactory rule by which to measure damages. Yet the necessity of a rule that limits the recovery to a pecuniary loss, flowing necessarily from the death, is not denied. And it has uniformly been held, in actions of this description, that the recovery must be confined to losses of a strictly pecuniary character, although in the statute giving the action the words 'pecuniary injury' have not been employed. (Blake v. The Midland Railway Co. 18 Adolph. & Ellis, N. S. 93; Dalton v. The South Eastern Railway Co. 4 Com. Bench, N. S. 296; Duckworth v. Johnson, 4 Hurlst. & Norman, 653; Franklin v. The South Eastern Railway Co. 3 Hurlst. & N. 211...

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