Sider v. Gen. Elec. Co.

• Citation: 143 N.E. 792,238 N.Y. 64
• Parties: SIDER v. GENERAL ELECTRIC CO. et al.
• Decision Date: 01 April 1924
• Court: New York Court of Appeals

238 N.Y. 64

143 N.E. 792

SIDER

v.GENERAL ELECTRIC CO. et al.

Court of Appeals of New York.

April 1, 1924.

Action by Estelle Sider, as administratrix de bonis non of the estate of James E. Yates, deceased, against the General Electric Company and another. From a judgment of the Appellate Division (203 App. Div. 443,197 N. Y. Supp. 98) modifying and as modified affirming as matter of law a judgment of Trial Term, which set aside a verdict for plaintiff and granted a new trial plaintiff appeals on a stipulation for judgment absolute.

Affirmed, and judgment absolute ordered.

Appeal from Supreme Court, Appellate Division, Fourth department.

Hamilton Ward, of Buffalo, for appellant.

Franklin D. L. Stowe, of Buffalo, for respondent Niagara Falls Power Co.

Richmond Moot, of Schenectady, for respondent General Electric Co.

CRANE, J.

The facts of this case are fully set forth in the opinion in Rosebrock v. General Electric Co., 236 N. Y. 227, 140 N. E. 571, a companion case. The action is like that of Shamrock v. General Electric Co., 204 App. Div. 902,197 N. Y. Supp. 948, in which the verdict for the plaintiff was affirmed by this court on the authority of the Rosebrock Case, 236 N. Y. 227, 140 N. E. 571.

James E. Yates, an employee of the Tonawanda Power Company, lost his life in an accident at the switch tower of the Niagara Falls Power Company at North Tonawanda, October 31, 1920. He left him surviving a widow, Georgia A. Yates, but no children, and as administratrix she brought this action in her own behalf on December 10, 1920. She died March 3, 1921, before the action was tried, and Estelle Sider was appointed administratrix de bonis non of the estate of James E. Yates and as such was substituted as plaintiff before the trial.

Mrs. Yates left a will through which she attempted to bequeath the cause of action. The will was offered in evidence, and the complaint was amended to allege her death and the making of the will.

The widow having died before the trial of the action, the question raised upon this appeal relates to the rule of damage to be applied in such a case. The judge charged the jury as follows:

‘This plaintiff may recover from the defendants such a sum of money as you jurors say would be fair and just compensation for the pecuniary injuries resulting from the death of James E. Yates to the widow, Georgia A. Yates.’

He declined to charge in the following:

‘I ask your honor to charge in that regard that the recovery in this action, if any, can be only as follows: For pecuniary loss sustained by Mrs. Yates from the date of Mr. Yates' death until her death; also for the necessary funeral expenses and the pecuniary loss sustained by Mr. Yates' brothers and sister, if any.’

To the refusal of the judge to charge this request, the defendants took an exception.

After the rendition of a verdict by the jury in favor of the plaintiff of $21,200, the trial justice, after consideration set aside the verdict and granted a new trial unless the plaintiff stipulated within 20 days to reduce the verdict to $2,500.

Upon appeal the Appellate Division unanimously affirmed this order of the trial justice, modifying it, however, to the extent of striking out the permission given the plaintiff to stipulate for a reduction of the verdict. Judgment of affirmance was entered upon this order of the Appellate Division.

The trial justice and the Appellate Division were of the opinion that it was error to refuse to charge the request as above stated relating to the amount and extent of the damages to be recovered owing to the death of the beneficiary, the widow, Georgia A. Yates, before the trial of the action. We agree with them.

It is the claim of the appellant that upon the death of James E. Yates the cause of action was given for the benefit of his widow, Georgia A. Yates, that this vested in her a right of property, and that the damages were to be measured as of the time of the husband's death. It is said that all subsequent events such as the death of the beneficiary, in this case the widow, could not in any way affect this right of property or the amount of the damages to be recovered. On the other hand, it is claimed by the respondent that the statute gives to the widow the damages which she actually sustained in the death of her husband, and that while she is alive these of necessity must be somewhat speculative; that is, they would be dependent largely upon the duration of her own life, and this, of course, would be uncertain. Where, however, before the trial she had died, the damages were at least rendered more certain by her death and would be confined to the loss which she had sustained between the time of her husband's death and that of her own.

The statute giving this cause of action is section 1902 of the Code of Civil Procedure (now section 130 of the Decedent Estate Law [Consol Laws, c. 13]). It reads:

‘The executor or administrator duly appointed in this state, * * * of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.’

Section 1904 of the Code (now section 132 of the Decedent Estate Law) provides for amount of recovery. It reads:

‘The damages awarded to the plaintiff may be such a sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons, for whose benefit the action is brought. If the decedent leaves surviving a father and a mother, the death of such father prior to the verdict shall not affect the amount of damages recoverable. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment.’

What was the damage sustained by the widow through the death of her husband, James E. Yates? He was killed October 31, 1920. She died a...