Nelson v. Lake Shore & M. S. R. Co.

• Decision Date: 16 April 1895
• Citation: 104 Mich. 582,62 N.W. 993
• Parties: NELSON v. LAKE SHORE & M. S. RY. CO.
• Court: Michigan Supreme Court

62 N.W. 993

104 Mich. 582

NELSON v. LAKE SHORE & M. S. RY. CO.

Supreme Court of Michigan

April 16, 1895

Error to circuit court, Monroe county; Edward D. Kinne, Judge.

Action by John P. Nelson, administrator of the estate of Annie R Nelson, deceased, against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. C. Angell, for appellant.

C. A Golden and Scribner & Hurd, for appellee.

GRANT J.

The accident which resulted in the death of Mrs. Nelson occurred in Ohio, and this suit is brought under the Ohio statute which is similar to that of Michigan, found in How. Ann. St �� 8313, 8314. The negligence of the defendant is conceded. The only questions arise upon the measure of damages. A statement of the evidence is essential to a proper understanding of the charge. There is no dispute as to the evidence. Mrs. Nelson was 56 years old; her husband 56; and she left four children,-a son, 23; a daughter, nearly 21; a daughter, 19; and a son, 16. She was an industrious woman, a good housekeeper, and in good health. The following, taken from defendant's brief, is a succinct and correct statement of plaintiff's testimony: "Prior to April, 1890, the family had lived in Monroe county. In that month Mr. Nelson took his wife and three younger children to Toledo, the elder son then living there. Mrs. Nelson kept boarders and lodgers from the time of her going to Toledo until her death. She managed the boarding business entirely. The profits of that business went for the support of the family. They hardly defrayed the household expenses. Mr. Nelson had to add some to it. Sometimes he was not able to contribute much; sometimes he was. She had on the average from six to eight boarders. The rent of the house was $30 per month. She received in gross from her boarders and lodgers about $100 per month; not more. Out of that she supplied the table, paid the rent, paid for fuel and light, and clothed herself. A good part of it went for buying carpets and better furniture for rooms. She put back a considerable part of the $100 in one or two rooms. Plaintiff still has the furniture. Plaintiff stated: 'She never turned over to me a dollar in cash. She did not furnish me with clothing nor pocket money. I think she did once or twice buy a pair of pants for me. Whatever she turned over to me was trifling in amount. I cannot form any estimate of what she used for the benefit of the children in getting clothes. I cannot give any idea of how much of the $100 was profit over and above the cost of feeding and caring for boarders and lodgers. I had not the least idea in regard to that. I do not think I could give you any idea what the contribution was that my wife made for my support and that of my children, over and above the expense of the household. I have no idea what the expenses of the household were. I cannot say how much clothing she furnished to the children. She never got any for me to amount to anything. I could not give any idea of the value of the goods she furnished the children. I could give no idea of her net earnings. It would be simply guess-work.' Irving Nelson, the son who was 16 when Mrs. Nelson died, testified that his mother furnished him his clothing and board. He has no idea how much the clothing furnished cost. She gave him what little pocket money he had. He was then in the high school. Anna Nelson, the daughter who was 19 when Mrs. Nelson died, testified that, from the time the family moved to Toledo, Mrs. Nelson furnished her with clothing, board, and other necessaries. She does not know what her mother's total contribution in money and clothes was during the last year of her life. Does not know what it costs to clothe her now. Whatever Mrs. Nelson spent she earned out of the boarding house, after paying expenses, rent, etc. The balance her mother used to clothe the children and keep up the house. She fitted up three sleeping rooms with new mattresses, furniture, and carpets and linen, and her dining room with crockery, tablecloths, and napkins. Witness did not know about the cost of the things purchased. She assisted her mother in the household work."

Plaintiff introduced the mortality tables found in How. Ann. St. � 4245. The jury therefore had before them the age of the deceased, the fact that she was in good health, the mortality tables, and the testimony above given as to the services she rendered the family. The learned circuit judge instructed the jury that these tables were not controlling or binding upon them, but that they were to give them just such consideration as they thought they were entitled to receive. The jury evidently thought them entitled to no consideration. They, as well as the other evidence, must have been entirely ignored for there is no possible basis in them for the verdict of $7,000. "The pecuniary injury to a husband from the death of a wife necessarily includes the loss of her services, and the measure of damages is their reasonable value." Tiff. Death Wrongf. Act, � 163. It is not enough to prove the marriage, age, and death, and then turn a jury loose upon the field of speculation or prejudice to hunt for some basis for a verdict. Mitchell v. Railroad Co., 2 Hun. 535. The compensation provided by the statute is strictly pecuniary. There can be no compensation for grief, loss of companionship, wounded feelings, or suffering, either of the deceased or of the beneficiary, and the court so charged the jury. The services must be proven, and the value shown. The jury may then find any amount between the lowest and highest limits. If A. works for B. under such circumstances as that the law implies a contract, A. must, in order to recover, prove the services, and their value. This rule holds in all cases where the law gives compensation for services. The damages must be founded upon the testimony. The rule in actions of torts does not apply. Cooper v. Railway Co., 66 Mich. 261, 33 N.W. 306. Opinion evidence of the value of such services is admissible. Rajnowski v. Railroad Co., 74 Mich. 27, 41 N.W. 847. The sole evidence of any service rendered by Mrs. Nelson to her husband is that she provided him with board, and clothed and boarded the minor children; or, in other words, that she mainly earned and paid the household expenses, though he contributed some and his daughter assisted. The only tangible evidence of the value of pecuniary loss to him was his board, and that of his two minor children. Upon this point there was evidence of the price of board. Beyond this there was no evidence of value. Who can estimate how much she spent for clothing for herself or children? Was it $2, $5, or $10 each per month? On what basis can a jury determine this without proof? One juror, if married, might say, "It costs me so much," another a different sum, while the unmarried juror would have no experience upon which to act at all. What would be reasonable in one case would be unreasonable in another. The standard in the case upon trial is the controlling one, and evidence must be adduced to show it. If it be said that what she made in her business is the basis of the value of her services, the case is equally barren of any substantial basis for recovery. She received at the most $1,200 per year, out of which she paid the rent, $360, and the cost of fuel, lights, provisions, and her own clothing, of the value of which there is no evidence. The annual interest on $7,000 at 6 per cent. would be $420. Assuming that she netted this sum each year, it would be 35 per cent. profit from her business,-a profit hardly probable, and leave the principal untouched. It is absurd to say, under such facts, that the husband and children sustained a pecuniary loss of $7,000. If there had been testimony to show that her probability of life was greater or less than that shown by the tables, then they would not have been conclusive. The jury should have been instructed that the tables were conclusive and binding, and their attention directed to the tangible evidence of the services and their value. The verdict was legally excessive, and the court should have set it aside, and granted a new trial. In Railway Co. v. Whitton, 13 Wall. 270, the testimony on which the charge was based in not given. "The personal qualities, the ability to be useful, and the capacity to earn money" were held competent evidence for the jury to consider. But the case does not hold that this alone is sufficient evidence of the value of services. The expression used by some authorities, "that the damages rest in the sound reason and discretion of the jury," means that this sound reason and discretion must be exercised within the range of the evidence. Neither is the testimony given in Railway Co. v. Goodman, 62 Pa. St. 329. If, however, that case holds to the doctrine that it is only essential to prove the relations of the parties; that the wife was frugal, industrious, useful, and attentive to her household duties; and that upon this evidence the jury may find the actual pecuniary loss,-we need only reply that such is not the doctrine of this court. The abuse to which such a doctrine leads is conspicuously apparent in the present case. The correct rule was stated by the court as follows: "The measure of damages in this case is the present value of the amount of money which the plaintiff and the minor children, during the continuance of decedent's life, would have received from her had she lived. The present valuation of a sum of money payable in the future is what that sum is worth if paid presently,-paid now. For example, the present value of one dollar at 6 per cent. at the end of one year is found by dividing one dollar by one dollar and six cents; the present value of one dollar at the end of two...