Bohrman v. Pennsylvania R. Co.

• Decision Date: 05 December 1952
• Docket Number: No. A--699,A--699
• Citation: 23 N.J.Super. 399,93 A.2d 190
• Parties: BOHRMAN v. PENNSYLVANIA R. CO. et al.
• Court: New Jersey Superior Court — Appellate Division

Page 399

23 N.J.Super. 399

93 A.2d 190

BOHRMAN v. PENNSYLVANIA R. CO. et al.

No. A--699.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 10, 1952.

Decided Dec. 5, 1952.

Francis M. Seaman, Perth Amboy, argued the cause for the plaintiff-respondent.

Stephen V. R. Strong, New Brunswick, argued the cause for the defendant-appellant Pennsylvania R. Co. (Strong & Strong, New Brunswick, attorneys).

Before Judges EASTWOOD, PROCTOR and FRANCIS, JJ.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

The defendant Pennsylvania Railroad Company (hereinafter referred to as 'the Railroad'), poses two questions by this appeal from a judgment of the Superior Court, Law Division, Middlesex County, entered against it and its engineer, Joseph H. Fitzsimmons, on a jury verdict, in an action instituted for the wrongful death of Beverly M. Bohrman, arising out of the passenger train derailment at Woodbridge, New Jersey, February 6, 1951, to wit: (1) Was there proof of the dependency of the natural parents upon their deceased daughter; if so (2) Was the verdict as reduced by the court to $15,000 excessive? Fitzsimmons did not join in the appeal.

The liability of the defendants for the death of plaintiff's decedent is conceded, thus obviating the necessity of a factual recital.

As administrator Ad prosequendum of his deceased daughter's estate, the plaintiff Philip Bohrman instituted a suit for her wrongful death against the defendant railroad company and the train engineer, seeking the recovery of damages in behalf of her next of kin. The matter was tried before the Law Division sitting with a jury.

In his complaint the plaintiff alleges that four named heirs had suffered pecuniary loss, I.e., the two natural parents of the decedent, a half-brother and an adult brother of the whole blood. By consent, the half-brother was stricken from the complaint and on motion of the defendant railroad at the close of the plaintiff's case, the name of the decedent's brother was stricken from the complaint for lack of proof of dependency. Thereafter, the question submitted to the jury was whether decedent's parents were dependent upon her and, if so, what was the extent of their pecuniary loss by reason of her death?

The defendants offered no proofs nor witnesses to controvert those proffered by the plaintiff. Motions for dismissal were unsuccessfuly made by the defendant railroad at the end of the plaintiff's case and again after it had formally rested its case.

The decedent was born June 15, 1932, and was 18 years, 7 months and 3 weeks of age at the date of her death. She lived at home with her parents. She was a normal, active, healthy, popular, friendly young lady, well liked by both boys and girls.

At the date of decedent's death, her father, the plaintiff, was 57 years of age and her mother was 53 years of age. Her father owned a beauty shop in Spring Lake, New Jersey, where he employed two to four licensed beauty operators in the winter and summer months respectively. In addition thereto, plaintiff and his wife worked in and about the shop. There was evidence that the decedent had graduated from high school in June of 1950, and intended to become a beauty operator; in fact, at the time of her death, she had completed all but approximately five weeks of training at the Wilfred Academy of Hair and Beauty. While decedent was in high school she worked in her father's shop every afternoon after school, on Saturdays until noon and a full day six days a week during school vacations; that from the time she entered beauty culture school she worked in the shop until noon every Saturday; that she cleaned the shop, sterilized equipment, kept the requisite supplies on hand, answered telephone calls, made appointments, received payments, ran errands, kept records, andgenerally assisted in servicing customers; that before the decedent started to work in her father's shop, her mother assisted him there, but that when decedent took over that work, her mother discontinued working in the shop except on special rush days; that, in addition to assisting her father at the shop, decedent assisted her mother with the cooking, cleaning, washing, ironing and care of the house.

The cross-examination of the father developed that the decedent's tuition at the beauty culture school was $400, and the monthly commutation fare to school was $25, and the Railroad contends that the same were paid by decedent's father as Quid pro quo for her work in his shop in her off hours and vacation periods.

The Railroad argues that this action should have been dismissed by the trial court, since decedent left no one surviving her who was entitled to recover under the Death Act. R.S. 2:47--4, as amended by L.1948, c. 429, p. 1670 (N.J.S. 2A:31-4, N.J.S.A.). This argument is based upon the premise that decedent's parents were not proven to be dependent upon her within the intendment of the statute; that the duties performed by her were in consideration of her father's payment of her education and her maintenance and providing her with the necessities of life; that, in fact, the evidence proves decedent's dependence upon her parents, rather than the reverse situation; that assuming decedent's parents were entitled to recover, the judgment which was reduced to $15,000 is excessive.

The plaintiff, on appeal, contends that applying the test of sufficiency of proofs to raise a jury question, I.e., rejecting all evidence and inferences unfavorable to the plaintiff and giving him benefit of all reasonable inferences, a jury question was raised as to the dependency of the parents upon their deceased child; that the jury's verdict, as reduced, was not excessive and should not be disturbed.

The pertinent statute upon which recovery is predicated, is R.S. 2:47--4, as amended by L.1948, c. 429, N.J.S.A., which provides, Inter alia:

'The amount recovered in proceedings under this chapter 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, except the natural parents of a decedent who was legally adopted, and shall be distributed to them in the proportions provided by law for the distribution of the 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, which amount shall be paid to her or him.' (Italics ours.)

The pivotal point about which the issue revolves is the construction of the word 'dependent' as used in the aforementioned statute.

The adjective 'dependent' is described as: 'Relying on, or subject to, something else for support; not able to exist, or sustain itself, or to perform anything, without the will, power, or aid of something else'; and the noun as: 'One who is sustained by another, or who relies on another for support or favor; * * *.' Webster's New International Dictionary (2d Ed.), at p. 701.

In Black's Law Dictionary (4th Ed.), at p. 524, the noun 'dependent' is defined as: 'One who derives support from another; not merely persons who derive a benefit from the earnings of the deceased; one who depends on or is sustained by another, existence, support, or direction from another favor,' and the adjective as: deriving existence, support, or diredtion from another; * * *.'

The Supreme Court of Illinois said of dependency in Peterson v. Industrial Commission, 331 Ill. 254, 162 N.E. 846, 847 (Sup.Ct.1928):

'* * * The word 'dependency' implies a present existing relation between two persons where one is sustained by another or looks to or relies on the aid of another for support or for reasonable necessaries consistent with the dependent's position in life. Wasson Coal Co. v. kindustrial Com., 312 Ill. 241, 143 N.E. 584. Partial dependency may exist even though the evidence shows the claimant could have subsisted without the contributions of the deceased employee. It is not necessary to show that the claimant would have been without the necessities of life or that he was without other means of support. * * *'

Cf. King v. Illinois Steel Corporation, 92 Ind.App. 456, 176 N.E. 161, 162 (Ind.App.Ct.1931).

More specifically, the requirement of dependency as referred to in statutes allowing actions for damages for wrongful death, has been held to have been served where the decedent contributed in whole or in part to the support and maintenance of the dependent claimant, regardless of the absence of legal obligation so to do. Elihinger v. Wolf House Furnishing Co., 230 Mo.App. 648, 72 S.W.2d 144, 148 (Ct.App.1934). The child's contribution must substantially or materially add to the parents' support to constiute a dependency on the part of the parent. Fuller v. Inman, 10 Ga.App. 680, 74 S.E. 287, 290 (Ct.App.1912).

In Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, at page 954, 145 A.L.R., at page 1184 (Sup.Ct.1943), it is said:

'* * * Dependency, as used in cases falling under our damage act, means dependency in fact, and not necessarily a strict legal dependency, making the deceased legally liable to furnish support. 6 Thompson on Negligence, § 7049; Bowerman v. Lackawanna Mining Co., 98 Mo.App. 308, 71 S.W. 1062. The fact of pecuniary benefit does not require definite and exact proof; but wherever there exists a reasonable probability of pecuniary benefit to one from the continuing life of another, however arising, the untimely extinction of that life raises a presumption of pecuniary injury. 6 Thompson on...