Loetsch v. New York City Omnibus Corp.

• Decision Date: 02 December 1943
• Citation: 52 N.E.2d 448,291 N.Y. 308
• Parties: LOETSCH et al. v. NEW YORK CITY OMNIBUS CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

291 N.Y. 308

52 N.E.2d 448

LOETSCH et al.

v.NEW YORK CITY OMNIBUS CORPORATION et al.

Court of Appeals of New York.

Dec. 2, 1943.

Appeal from Supreme Court, Appellate Division, First Department.

Action for wrongful death of Vilmar Loetsch, as executrix of Rose Yankovich, deceased, and others, against New York City Omnibus Corporation and others. From a judgment of the Appellate Division, 266 App.Div. 722,41 N.Y.S. 923, affirming, by a divided court, a judgment for plaintiff entered on a verdict rendered at a trial term, Koch, J., defendants appeal.

Reversed and new trial granted.

LEHMAN, C. J., and RIPPEY and DESMOND, JJ., dissenting. Joseph Cole and Henry J. Smith, both of New York City, for appellants.

Frank Aranow and Benjamin H. Siff, both of New York City, for respondents.

THACHER, Judge.

Appeal by defendant from the nonunanimous judgment of the Appellate Division affirming a judgment of the Supreme Court, New York County, in favor of plaintiff in a wrongful death action.

Upon the trial of this action counsel for defendants-appellants offered in evidence the will of the decedent dated December 2, 1940, for the purpose of proving the statement of the decedent with respect to her relations with her husband. The statement was as follows: ‘Whereas I have been a faithful, dutiful, and loving wife to my husband, Dean Yankovich, and whereas he reciprocated my tender affections for him with acts of cruelty and indifference, and whereas he has failed to support and maintain me in that station of life which would have been possible and proper for him, I hereby limit my bequest to him to one dollar.’

On plaintiffs' objection the will was excluded from evidence, and the exception taken presents the only question for our consideration. The will, executed within four months prior to decedent's death, was relevant to an understanding of the relations which existed between the decedent and her husband. It is always proper to make proof of the relations of the decedent to the person for whose benefit the action is maintained, because such proof has a bearing upon the pecuniary loss suffered by the person entitled to the recovery, and this is true whether the beneficiary is the surviving husband or wife or one or more of the next of kin. Murphy v. Erie R. Co., 202 N.Y. 242, 245,95 N.E. 699;Houghkirk v. President, etc., of Delaware & H. Canal Co., 92 N.Y. 219, 44 Am.Rep. 370;Sternfels v. Metropolitan St. R. Co., 73 App.Div. 494, 77 N.Y.S. 309, affirmed 174 N.Y. 512, 66 N.E. 1117;Farley v. New York, N. H. & H. R. Co., 87 Conn. 328, 87 A. 990.

The measure of loss is to be determined solely from the standpoint of the surviving spouse and is strictly limited to compensation for pecuniary loss. Decedent Estate Law, s 132, Consol.Laws, c. 13. Accordingly, the amount recoverable in any particular case must be very largely influenced by the nature of the relationship between the beneficiary and the deceased. When the deceased is one who was under no legal obligation to provide support for the beneficiary during life, his or her disposition voluntarily to do so is of essential importance to the jury in determining pecuniary loss. Evidence showing such a disposition or the lack of it should not be excluded.

Question remains as to the character of the proof offered, which was a declaration in writing of the decedent made within four months of her death. Such declarations are evidence of the decedent's state of mind and are probative of a disposition on the part of the declarant which has a very vital bearing upon the reasonable expectancy, or lack of it, of future assistance or support if life continues. This expectancy, disappointed by death, is the basis of recovery ( Michigan Cent. R. Co. v. Vreeland, 227 U.S. 59, 70, 33 S.Ct. 192, 57 L.Ed. 417, Ann.Cas.1914C, 176) and is the measure of pecuniary loss for which the jury must award fair and just compensation. No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true of false, is compelling evidence of her...