Kraus v. Ford Motor Co.

• Decision Date: 17 December 1976
• Citation: 390 N.Y.S.2d 495,55 A.D.2d 851
• Parties: Theodore W. KRAUS, as Administrator of the Estate of Theodora Kraus and Theodore W. Kraus, Respondents, v. FORD MOTOR COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 495

390 N.Y.S.2d 495

55 A.D.2d 851

Theodore W. KRAUS, as Administrator of the Estate of Theodora Kraus and Theodore W. Kraus, Respondents, v. FORD MOTOR COMPANY, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 17, 1976.

Ohlin, Damon, Morey, Sawyer & Moot, Andrew Feldman, Buffalo, for appellant.

Wilkin, Good, Lopat & Beyer, William Wilkin, Buffalo, for respondent.

Before MOULE, J.P., and SIMONS, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM:

Following a jury verdict of $3,500 in this wrongful death action, the trial court directed a new trial unless defendant, Ford Motor Company, agreed to increase the verdict to $10,000.

Defendant appeals, contending that the jury verdict should not have been set aside. It is clear, however, that a trial court may, in the exercise of its discretion, set aside a jury verdict on the ground of inadequacy (Figliomeni v. Board of Educ. of City School Dist. of Syracuse, 38 N.Y.2d 178, 379 N.Y.S.2d 45, 341 N.E.2d 557), and where a verdict is plainly inadequate, the courts are bound to correct it (Cavanaugh v. Feldman, 240 App.Div. 908, 267 N.Y.S. 848). Furthermore, when a trial court exercises its discretion with respect to adequacy of a jury verdict, its determination should not be disturbed unless it is not reasonably grounded (Hogue v. Wilson, 51 A.D.2d 424, 381 N.Y.S.2d 921).

The jury found that plaintiff's 'probable chances of pecuniary benefit from the continuance in life of the decedent' (Arnold v. State of New York, 163 App.Div. 253, 265, 148 N.Y.S. 479, 486) were worth $2,259.05, after allowing for funeral expenses. We agree with the trial court that this verdict is inadequate. However, it may not be concluded that the trial court's award was not influenced by the evidence of decedent's earnings record which was improperly admitted.

On the very day trial commenced, plaintiff orally moved to amend his bill of particulars in order to add a statement of decedent's prior earnings. While leave to amend a bill of particulars is to be freely granted (CPLR 3025(b)), plaintiff's motion was unaccompanied by a supporting affidavit, and failed to show 'special and extraordinary circumstances' (see Gardner v. Fyr-Fyter Co., 55 A.D.2d 816, 390 N.Y.S.2d 289 decided herewith; see also Barry v. Niagara Frontier Transit System, Inc., 38 A.D.2d 878, 329 N.Y.S.2d 161). The amount of decedent's wages was available long before plaintiff's motion, and in the absence of reasonable excuse for the delay, such evidence was improperly received.

With respect to the amount of damages, plaintiff was entitled to recover 'such sum as the jury . . . deems to be fair and just compensation for the pecuniary injuries resulting from the decedent's death' (EPTL 5--4.3).

In determining the extent of pecuniary injury, decedent's age, health, life expectancy, relationship to the person seeking recovery and disposition to support such person are proper factors for consideration (Neff v. United States, DCDC, 282 F.Supp. 910, revd. on other grnds., 136 U.S.App.D.C. 273, 420 F.2d 115, cert. den. 397 U.S. 1066, 90 S.Ct. 1500, 25 L.Ed.2d 687).

Here, decedent was 66 years of age at the time of her death and had a life expectancy of 14.95 years. Although she was hospitalized due to a hip problem about six months before her death, her physician's testimony shows that she was improving and able to return to her normal...