Spreen v. Erie R. Co.

• Decision Date: 28 December 1916
• Citation: 219 N.Y. 533,114 N.E. 1049
• Parties: SPREEN v. ERIE R. CO.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 533

114 N.E. 1049

SPREEN

v.ERIE R. CO.

Court of Appeals of New York.

Dec. 28, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Sophie Spreen, as administratrix or Carl Spreen, deceased, against the Erie Railroad Company. Judgment for the plaintiff was affirmed by Appellate Division by divided court (164 App. Div. 941,149 N. Y. Supp. 1112) and defendant appeals. Affirmed.

Hiscock, Chase, and Collin, JJ., dissenting.

William C. Cannon, of New York City, for appellant.

Sydney A. Syme, of Mt. Vernon, for respondent.

WILLARD BARTLETT, C. J.

The only question which we deem it necessary to discuss in disposing of this appeal relates to the admission of certain evidence introduced to show the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action was brought. Code Civ. Proc. § 1904.

After having testified that she received money from her husband, the widow was asked what she received and how much. The question was objected to as irrelevant and immaterial, counsel adding to his objection the statement that the decedent was in business for himself, and that the estate was still carrying on the business. The court responded:

‘The estate, as you call it, could go on in business whether he was living or dead-the same people might-I overrule the objection’

-and counsel for the defendant duly excepted. The witness answered that her husband gave her all the money he made, $35 a week when they were in business.

By previous and subsequent testimony of the same witness, all taken without objection or exception, it appeared that the decedent had carried on an express business between Hackensack and New York with wagons and horses driven by himself and sometimes by a driver whom he employed. At first he gave his wife $25 a week, and later she got more, as the business increased. She could not keep it up after his death, as the expenses were too high, and she seems to have abandoned it altogether about 18 months after he was killed.

Counsel for the appellant invokes the rule that evidence of profits of business which are uncertain and fluctuating in character and amount is not admissible to prove loss sustained by reason of personal injuries (Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58, 68,97 N. E. 408,37 L. R. A. [N. S.] 1137), and asks us to reverse the judgment for the violation of this rule. Individually I doubt whether the point was distinctly presented to the mind of the trial judge, but as a majority of the court think otherwise we must pass upon it.

[1] The first question is whether the rule applies to death cases as well as to cases of personal injury not resulting in death. It has been held that it does in Pennsylvania (McCracken v. Traction Co., 201 Pa. 384, 50 Atl. 832), and in Read v. Brooklyn Heights R. R. Co., 32 App. Div. 503,53 N. Y. Supp. 209, a death case decided by the Appellate Division in the Second Department, when Chief Judge Cullen and I were members of that court, one of the grounds for reversing the judgment was the erroneous admission of proof of the profits realized by the plaintiff's intestate as member of a partnership which was engaged in performing contracts with the city of Brooklyn for cleaning out sewers. The reasons for the rule excluding proof of...