Carianni v. Schwenker

• Decision Date: 25 November 1955
• Docket Number: No. A--644,A--644
• Citation: 118 A.2d 847,38 N.J.Super. 350
• Parties: Emanuel CARIANNI, administrator ad prosequendum of the estate of Tina Carianni, deceased, Plaintiff-Appellant, v. Robert F. SCHWENKER, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 350

38 N.J.Super. 350

118 A.2d 847

Emanuel CARIANNI, administrator ad prosequendum of the estate of Tina Carianni, deceased, Plaintiff-Appellant, v. Robert F. SCHWENKER, Defendant-Respondent.

No. A--644.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 10, 1955.

Decided Nov. 25, 1955.

Francis Sorin, Jersey City, for plaintiff-appellant.

E. Burke Finnerty, Jersey City, for defendant-respondent (Townsend & Doyle, Jersey City, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Who is a 'dependent' of the decedent, for purposes of the statute providing for recovery of damages on account of the death of a person by wrongful act, neglect or default of another? N.J.S. 2A:31--1, 4, 5, N.J.S.A. Where lies and who is to determine the line separating the surviving relatives of the decedent who are dependents from those who may sustain 'pecuniary injuries' as a result of the death but are nevertheless not dependents, wholly or in part? These are the primary questions which engage our attention on this appeal.

On the morning of August 6, 1953 Tina Carianni, aged 56, wife of the plaintiff, was crossing the Blawenburg-Rocky Hill Road in Montgomery Township, Somerset County, when she was struck and fatally injured by an automobile driven by the defendant. She was returning to a new home being constructed for their occupancy by her husband and then almost completed, after having crossed the road to borrow a knife from a neighbor in order to open the door to the house which had locked with her infant grandchild inside. The evidence concerning the circumstances of the incident consisted almost entirely of a deposition taken from the defendant and read at the trial. It requires no discussion here other than our observation that the issues with respect to liability were properly submitted to the jury.

Mrs. Carianni left as survivors, in addition to her husband, three adult daughters, Marie Moroni, 32 and married, Mildred, 29, and Virginia, 21, the latter two single at the time of the accident but married later. The family lived in Jersey City, the unmarried daughters in the apartment of the parents, the married daughter with her husband and a small child in an apartment above that of the parents in the same house. The plaintiff husband was a carpenter.

Mrs. Moroni testified that the members of her own family took most of their meals at her parents' home and that her mother took care of the child and fed it while she and her husband were at work; that the mother purchased food and clothing for the child; and that she gave her mother $20 per week but that this sum was almost entirely used up on expenditures for the child. Mrs. Moroni had a job which paid $52 per week and her husband earned $60 per week. The trial court refused to allow questions designed to elicit evidence of services rendered by the mother to the daughter, apart from the care of the child, such as laundry, sewing, housecleaning, etc., insofar as they bore upon the issue of dependency of Mrs. Moroni upon the mother, taking the position that dependency was a matter exclusively of financial assistance and that the facts showed that the witness' was not dependent upon her mother for maintenance.' However, some testimony concerning the miscellaneous services by the mother referred to crept into the record collaterally. Full development of the scope and nature of the services was prevented by objections on behalf of defendant which were sustained by the court.

Virginia earned $59 per week and paid $10 per week to her mother as 'board.' She had breakfast and dinner at home. Attempts to elicit evidence concerning various kinds of services rendered to her by the mother were precluded on objection, the court ruling as a matter of law that an adult child earning $59 per week was not a statutory dependent of the mother no matter what services or benefits accrued to the daughter from the mother during her lifetime. Substantially similar offers of evidence and rulings attended plaintiff's attempts to show the services rendered by the mother to the daughter, Mildred, who was earning $55 per week.

There was no evidence as to the amount of the earnings of the plaintiff husband, who was 58 at the death of the decedent, but he testified that whatever he earned he turned over to his wife and that she managed the finances. Hers was the typical daily routine of the devoted wife and mother. There was proof that she prepared meals for the entire family, personally did all the family laundry, made clothes for the daughters and grandchild, did the shopping, housework and dishes and saw to the care, mending and cleaning of the clothing of the husband and daughters. A year after the accident plaintiff became hospitalized for tuberculosis and was still in an institution at the time of trial. There was medical testimony that he has a moderately advanced condition.

In charging the jury the trial court ruled that the pecuniary losses alleged to have been sustained by the daughters could not be taken into consideration by the jury because they were not 'actually dependent upon their mother.' It left for the jury's determination, in the event it found liability on the part of defendant, whether the plaintiff husband had sustained any pecuniary loss, 'taking into account all the uncertainties and contingencies of this particular case,' and submitted for their decision the question as to 'whether there is such a reasonable and well founded expectation of pecuniary benefit (to the husband) that can be estimated in money and become the subject of damages.'

The jury returned a verdict of no cause for action. The appeal raises a number of grounds of alleged error but the only one we deem it necessary to consider is that based upon the exclusion by the trial court of testimony as to the services by the mother to the daughters and as to their losses consequent upon her death. While not so precisely articulated in the brief we deem this point fairly comprehends the contention that the court erred in ruling, as a matter of law, that the daughters were not dependents and their pecuniary losses not recoverable, that position having obviously been the ideological base for the exclusions complained of.

We notice In limine the contention on behalf of defendant that the issue just referred to is moot in view of the jury verdict. The postulate is that it was thus determined that the defendant was not liable at all. We do not think this is a valid assumption. The jury may well have concluded for the defendant on the basis that plaintiff had no damages. Watkins v. Myers, 12 N.J. 71, 74, 95 A.2d 705, 36 A.L.R.2d 1330 (1953); Kovacs v. Everett, 37 N.J.Super. 133, 117 A.2d 172 (App.Div.1955). At the time of the accident the plaintiff was temporarily living in Somerset County where he was building a new home. After the death of decedent he was hospitalized for what, at the time of trial, appeared would be a period of indefinite duration. In the light of the charge of the court as quoted above the jury may well have intended by its verdict to signify its conclusion that plaintiff might never improve sufficiently to be released and thus or for other reasons not to be in a position of pecuniary loss attributable to the death of his wife. In that frame of reference plaintiff would have no compensable damages. See Hampton v. Pennsylvania R. Co., 115 N.J.L. 168, 179 A. 101 (E. & A.1935). We consequently conclude the issues involved in the court's rulings as to the non-dependency of the daughters are real, not moot.

I

Prior to 1948 dependency of a member of the beneficiary class upon the decedent was no element of the right of recovery under the Death Act in this State. R.S. 2:47--4; Wellbrook v. Ocean County Trust Co., 154 A. 521, 9 N.J.Misc. 273, 278 (Sup.Ct.1931). Recovery was for the 'exclusive benefit of the widow, surviving husband, and next of kin of the decedent,' distributable as in the case of personal property of intestates, except that a spouse took the entirety where the decedent left no children, descendants or parents. In 1948 the Legislature amended R.S. 2:47--4 so as, in substance, to qualify the right of recovery as to all members of the class other than the surviving spouse by the condition that they be 'dependent.' L.1948, c. 429. No change however, was made in the provisions of R.S. 2:47--5, specifying that the damages recoverable should be such as the jury might 'deem fair and just with reference to the pecuniary injuries resulting' from the death to the members of the beneficiary class. In Turon v. J. & L. Construction Co., 8 N.J. 543, 86 A.2d 192 (1952), it was held, nevertheless, that the damages recoverable under R.S. 2:47--5 were confined to the losses of those persons alone who were in the category of beneficiaries as constricted by the 1948 amendment of R.S. 2:47--4 and that consequently the measure of recovery did not extend to the losses of an adult son of a decedent father who was conceded not to have been dependent upon the father. The opinion is devoid of any facts bearing upon the pecuniary or financial status of the son and we may assume there was no dependency in even a partial sense. Moreover, the decedent died in 1950, and the court was consequently not concerned (see 8 N.J. at page 560, 86 A.2d at page 200) with the effect of N.J.S. 2A:31--4, 5, effective January 1, 1952, to which reference will be had hereinafter.

The legislative history of L.1948, c. 429, does not illumine the intent of the introduction of the prerequisite of dependency. The 'statement' attached to the bill as introduced and passed in the Legislature (Assembly No. 437) contains the uninformative and inaccurate recital that its purpose was to 'limit the distribution of damages to the dependents of decedent.' See Deaney v. Linen Thread Co., Inc., 19 N.J. 578, 118 A.2d 28 (1955). The retrogressive nature of the...