McStay v. Przychocki

• Decision Date: 25 June 1951
• Docket Number: No. A--140,A--140
• Citation: 81 A.2d 761,7 N.J. 456
• Parties: McSTAY v. PRZYCHOCKI.
• Court: New Jersey Supreme Court

Page 456

7 N.J. 456

81 A.2d 761

McSTAY v. PRZYCHOCKI.

No. A--140.

Supreme Court of New Jersey.

Argued May 28, 1951.

Reargued June 7, 1951.

Decided June 25, 1951.

Harry Green, Newark, argued the cause for the appellant (David Green, Newark, attorney).

John P. Nugent, Jersey City, argued the cause for the respondent (Nugent & Rollenhagen, Jersey City, attorneys).

The opinion of the court was delivered by

ACKERSON, J.

This action arose out of a fatal accident which occurred on December 4, 1947, when James McStay, age 12, and his brother Francis J. McStay, Jr., age 10, were killed by an automobile operated by the defendant at a street intersection in the City of Bayonne. James died the same day and Francis the day after the accident. They were survived by their father, Francis McStay, age 39; their mother, Gertrude E. McStay, age 35, and two brothers, then 5 and 3 years old respectively, and a sister, age 9 months. The action was brought in the Hudson County Court, Law Division, by the father, as administrator Ad prosequendum of his deceased sons, under the so-called 'Death Act' (R.S. 2:47--1 et seq., N.J.S.A.) and also as general administrator of the estate of Francis who lived until the day following the accident. However, the father died on April 29, 1949, before trial, and the mother was substituted as plaintiff in the same representative capacities.

In the pretrial order defendant admitted liability and the trial was limited to the following issues: 'To the pecuniary loss to the mother of decedents and present Administratrix Ad Prosequendum and general Administratrix, Gertrude McStay, and the pecuniary loss to the next of kin.' The jury returned a verdict of $6,000 as damages for the death of each child, a total of $12,000, and judgment was entered accordingly. Defendant thereupon moved for a new trial on the grounds the verdict was contrary to the charge of the court, excessive, and arrived at as the result of bias, prejudice and sympathy. The trial court denied the motion and, on defendant's appeal, the Appellate Division of the Superior Court affirmed the judgment, whereupon we granted defendant's petition for certification to the Supreme Court.

It is well to note In limine that the pertinent section of the Death Act permits the jury to assess 'such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the widow, surviving husband, and next of kin of the deceased.' This has been interpreted to mean the 'deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased'. Carter v. West Jersey & Seashore R.R. Co., 76 N.J.L. 602, 71 A. 253, 19 L.R.A., N.S., 128 (E. & A. 1908). In applying this rule it was said in Cooper v. Shore Electric Co., 63 N.J.L. 558, 567, 44 A. 633, 636 (E. & A. 1899): 'With respect to the damages recoverable in such a suit, they are not such as arise from injury to the feelings, but are awarded in reference to a pecuniary loss, and in estimating damages the jury cannot take into consideration mental suffering or loss of society, but must give compensation for pecuniary injury only. * * * Not that the proof with respect to the personal injury need be such that the amount of such damages may appear with exactness. If the evidence be such as to show a reasonable expectation of pecuniary advantage, the extinction of such an expectation by an act occasioning the death of the party from whom it arises will sustain the action, and it is for the jury to say under all the circumstances, taking into account all the uncertainties and contingencies of the particular case, whether there was such a reasonable and well-founded expectation of pecuniary benefit as could be estimated in money, and so become the subject of damages.'

The evidence discloses that James and Francis, Jr. were bright, healthy, normal boys, doing well in school, actively helped with the work in and about the home and assisted in attending to the younger children. James, during the summer of 1947, earned from $3 to $5 per week by delivering newspapers. He had a life expectancy of 53 years and his brother Francis, 55 years. The life expectancy of their mother was 33 years, but that of the three younger children is not revealed.

Defendant's brief on this appeal sets up four points as grounds for reversal. The first of these is to the effect that the trial court erred in refusing to charge defendant's fourth and fifth requests regarding the measure of damages. However, at the oral argument in this court, defendant's counsel expressly abandoned this point conceding that there was no error in such refusal.

In his second assignment of error, defendant insists that the trial judge erred in propounding a hypothetical case to the jury in explanation of his refusal to charge the above mentioned fourth request because, it is claimed, the hypothetical deliverance, following such refusal, amounted to an instruction to the jury that damages were not to be limited to pecuniary considerations. The rejected request was as follows: '4. In actions of this kind, for the death of a minor, the parent is entitled to the earnings of that child until the child becomes twenty-one years old or is emanicipated, that is until the child leaves home and cares for itself; the mother would be entitled to the sum, whatever it might be, that he would earn from the time the boys were able to earn until they were twenty-one years of age; but from that you should deduct the amount of money it would cost the mother during that time to support and clothe and educate them, because you see the mother is entitled to his earnings but she is bound in return to support him, clothe and educate him--such education as the mother might give them, until they become twenty-one years of age. * * *'

This request is set up substantially in the words of that part of the charge which was under consideration in the case of Maher v. Magnus Company, Inc., 1 N.J.Misc. 469 (Sup.Ct.1923), affirmed, 99 N.J.L. 514, 123 A. 868 (E. & A. 1923), and was undoubtedly submitted in that form to the trial judge in the instant case upon the assumption that it had been approved as a complete and all inclusive statement of the rule of damages under the pertinent section of the Death Act (R.S. 2:47--5, N.J.S.A.) where the death of a minor...