source: Caselaw Access Project

author: Hogeboom, J.

license: Public Domain

text:
    William Tilley, Administrator, &c., of Angeline Tilley, deceased, v. The Hudson River Railroad Company.
    In an action by a father, as administrator of his wife, wno was killed by the negligence of the defendants, it is not improper for the judge to charge the jury that, in estimating the pecuniary injury, they may take into consideration the nurture, instruction, and physical, moral and intellectual training which the mother gave to the children.
    Such a charge does not imply that the children are necessarily and inevitably subjected to such a loss, but leaves it to the jury to determine whether any such loss has been in fact sustained, and, if so, the amount of the loss.
    There is no sufficient legal reason for limiting the damages, in such an action, to the minority of the children, if the jury are legally persuaded they will continue after that age.
    It is not erroneous to instruct the jury, in such a case, that while they must assess the damages with reference to the pecuniary injuries sustained by the next of kin in consequence of the death of the mother, they are not limited to the losses actually sustained at the precise period of her death, but may include, also, prospective losses, provided they are such as the jury believe, from the evidence, will actually result to the next of kin as the proximate damages arising from the wrongful death.
    In such an action evidence in relation to the capacity of the mother to conduct business and make money, is proper, as aiding the jury in arriving at a correct result in regard to the pecuniary benefit which the mother was to her children, and her capacity to bestow such training", instruction and education as would be pecuniarily serviceable to the children in after life.

      Appeal by the defendant from a judgment of the Supreme Court rendered in the Third District in favor of the plaintiff.

    The action was brought by the plaintiff, as administrator of his wife, to recover damages sustained by her death from injuries alleged to have been caused by the negligence of the defendant. The cause has been twice tried. The judgment rendered in favor of the plaintiff on the first trial was reversed by this court and a new trial ordered. (24 N. Y. R. 471.) A second trial was had before Mr. Justice Hog-e-boom and a jury at the Rensselaer circuit in December,
      1862, and the plaintiff recovered a verdict. Mo question was made but that the death of the plaintiff’s intestate was caused by the negligence of the defendant. The only questions made by the defendant related to the rule of damages. The injury which caused the death happened on the 18th of January, 1860, near Sing Sing, by a collision of trains on the defendant’s road, in one of which the deceased was a passenger. It appeared that prior to her death the plaintiff, who was a carpenter by trade, resided with his wife and family in the town of Grafton, in the county of Rensselaer. The deceased, at the time of her death, was 48 years of age—the plaintiff about 50; and there were five children, the oldest 23 and married, the next 21, one 17, one 11, and one 9 years of age. To the admission of evidence of the plaintiff’s occupation the defendant excepted. The plaintiff was also allowed to show, under the objection and exception of the counsel for the defendant, that the deceased ■carried on the shirt and bosom mating business. That she also attended to her household affairs; that she instructed her children and sent them to school, instructed them in domestic affairs, nursed them in sickness, was a member of the Baptist church, the superintendent of a Sunday school, and frequently took part in the exercises of the church, and addressed and exhorted at meetings. The judge, among other things, instructed the jury that in estimating' the damages they had a right to consider the loss which the children had sustained in reference to their mother’s nurture, intellectual, moral, and physical training, and of such instruction as can only proceed from a mother, and as they would otherwise have required at her hands. That they were not at liberty to speculate upon the probabilities of them loss being wholly or partially supplied by their father’s exertions, or by his second marriage, or from any other source, and make an allowance to the defendant by way of deduction from the damages on that account. That in estimating the pecuniary damages the jury should consider the age of the mother, her .physical and mental capabilities, her capacity for business, the ages of her children, and the fact that at the time of her decease she and her children were residing together as a family. That the damages were to be assessed with reference to the pecuniary injuries sustained by the next of kin on account of the death, and they are not confined to the actual present loss, which could be proved, biitprospective loss also, provided the prospective loss is such as the jury believe, from the evidence, will actually result to the next of kin as the proximate damages arising from the wrongful death.- That the injuries to the children by the death of the mother is a legitimate ground of damage, and that in estimating such damages the jury have a right to consider the loss of the children of the deceased in reference to such intellectual, moral, and physical training, and such instruction as they would otherwise have received at her hands. That the jury had the right to consider the business and other capabilities of the mother with reference to her competency to discharge her duties towards the pecuniary benefit of the children, in her intellectual, moral, and physical training of the children. To all the foregoing directions the counsel for the defendant excepted. The judge, upon request, declined to charge that the'only damages the jury could give were those sustained by the infant children of the deceased, but instructed the jury that if, under the evidence, they could fairly conclude that the children at any age would receive pecuniary benefit from the instruction and counsel of the mother, they were entitled to allow for it such damages as would naturally and proximately result. The judge also refused to charge that no damages could be given for any loss sustained by Mrs. Burdick, one of the children, who was of iio-e- before the mother died. And in various forms the O « judge refused to charge the jury, that in estimating the damages -they were limited to such pecuniary loss as the <. hildren would sustain during the period of their minority, but did instruct them that in this respect they were not limited to any age, and, in effect, that they were at liberty to allow damages through the whole period of their probable lives; and to all these directions the defendant’s counsel excepted. The jury found for the plaintiff a verdict for $5,000.

      John H. Reynolds, for the appellant.
    I. When this case was before this court on a former occasion, it seems to have been the opinion of a majority of the judges that the value of the wife’s earnings, and the probability that her children would have received an estate, increased by such earnings, on the death on intestacy of the father, could not be considered in estimating the damages to be recovered. But that the injury to the children in the loss of maternal nurture and education, and in their moral and physical training was a pecuniary one within the intent of the statute, and a proper ground for damages; and also that evidence of the habitual occupation and employment of the deceased is admissible to show her general capacity and relation to the family. (Tilley v. H. R. R. R. Co., 24 N.Y. Rep. 471.)
    1. It cannot be said, however, that all these questions were so far determined by the court as to preclude all further consideration of them, or that they are necessarily to control'the case as now presented.
    '2. It will be seen by an examination of the report of the case that, on the first trial, the jury were instructed that in estimating the damages they might consider the increase that the earnings of the deceased would actually have added 'to the common stock in view of the reasonable probability that, upon the father’s death, the children would inherit his property; and that they might estimate the fair pecuniary value of the chance that, in the ordinary course of things, the earnings of the wife would have gone through the hushancl to the children. To this the defendant excepted; and for this error in the charge a majority of the court granted the new trial, and this was the only question decided, or properly before the court for decision.
    3. On the first trial, the jury were instructed that the plaintiff was not entitled to recover anything as for any value of the deceased to her children in their nurture or education. There was no exception to this by the defendant, by whom the former appeal was brought, and it could not properly be considered by this court. It does not' appear that this ruling was excepted to by the plaintiff; but if it- was it could make no difference, as the plaintiff had no appeal before the court. So far, therefore, as relates to the questions, submitted to the jury on the second trial; and upon which the present verdict is founded, they are open to debate.
    II. The statute under which this action was brought provides that “ the jury may give such damages as they shall deem a fair and just compensation, not exceeding $5,000, in reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.” "(Laws of 1849, p. 388.) It is not denied, and can not be, that the damages to be recovered in such an action must be strictly the result of a pecuniary injury. It is submitted that on the trial of this cause the jury were permitted to consider improper elements in estimating damages, and for which a hew trial should be granted.
    1. The jury were instructed, among other things, that in estimating damages they had a right to consider the loss which the children had sustained in reference to the supposed moral training which it is conjectured they would have received but for the mother’s death. ' This was put to the jury as an element of pecuniary damage sustained by the children in consequence of the death of the mother.
    2. In respect to the element of moral training, so far as such instruction has been given, up to her death, the evidence tends to prove that the children went to school oh ' week days, and the mother did not make a practice of giving them any instruction except on Sundays, and sometimes she might have asked them questions from the Bible. It was proved also that she was- a member of the Baptist church, in which she took a part in the exercises, exhorting the meeting frequently and was the superintendent of a branch of the Sunday school. All this evidence was given under the objection of the defendants; and it is submitted that the evidence was inadmissible and the instruction to the jury based upon it improper.
    3. There is no view of the case in which it can be properly said, as a matter of law, that the omission or deprivation of moral and religious instruction will necessarily involve a temporal and pecuniary loss, within the meaning of the statute, to the children of the deceased.
    There is no rule in respect to the acquisition of money or property which enables any court to say, as a matter of law, that a person who has received proper instructions in morals and religion is any better calculated to earn money or acquire property than one who has never- had such instructions; and the ruling of the circuit can not be sustained except upon the recognition of such a rule. It is a matter of the commonest observation that the intensely wicked—those who have never received any moral or religious instruction, or who, having received it, have not profited by it, and do not practice its precepts—are quite as successful in the accumulation of money and property as those who have not only had the most careful moral instruction, but who fully illustrate it in the practice of their lives.
    5. It is not intended to deny the beneficial influence which such instructions may have upon the character of a man; but it is denied that their loss necessarily results in pecuniary damage. It is submitted also that such instructions, however carefully and persistently given, do not necessarily result in making a good citizen. The examples are numerous, as every man knows, where a life of infamy and crime has followed the most careful moral and religious nurture in infancy and childhood.
    6. And all damages which are awarded by courts of justice are such only as naturally and necessarily result from the injury complained, of. It does not follow that the loss of moral instruction will result in pecuniary damage, or that it will, of necessity, aifect the personal character of the party deprived of the instruction.
    III. In the present case" the evidence does not show any very extensive employment of time, by the deceased, in the moral training of her children; nor does it appear that such instruction as was given would be approved by this court as orthodox, or meet the approbation of a moral and religious community; and it can not be seen whether the children would probably be more successful in after life with them or without them.
    1. It is presumed that the plaintiff proved that the deceased was an active member of the Baptist church, for the purpose of impressing the jury with her religious character, and raising the presumption that she instructed, and would have instructed, her children in the cardinal doctrines of that denomination of Christians, and that such instruction would have been in the highest degree beneficial to the children in after life.
    2. If evidence of this description can be admitted in a case of this character, and be considered in awarding damages, it opens the question as. to what particular kind of moral and religious instruction is best adapted to promote success in the acquisition of property and the entire range of controversy among religious sects will be thrust into the jury box and before the courts. If the fact that a deceased mother was a member of the Baptist church and instructed her infant children in that faith may be.given in evidence by the plaintiff to enhance damages, it may be met by proof from those who think such instructions little better than heresy, and that children thus educated deserve no temporal success, and are in danger of eternal ruin. If it .may be proved that a mother, killed by negligence, was of Christian character and the member of a Christian church, and damages recovered for the loss of moral training which such a mother would be supposed to give her children, the right to damages may be defeated altogether by showing that the deceased was an infidel in belief, and likely to instruct her children in her own faith, to their great detriment in every point of view.
    3. Such considerations must also provoke inquiry as to instruction in the peculiar moral and religious tenets which are best calculated to promote temporal success; and endless controversy must arise, in respect to which no court of justice can establish a rule. For if it be true that the loss of moral and religious instruction is a ground of pecuniary damage in an action like the present; the damage will be larger or smaller as the instruction is more or less adapted to the future circumstances of the child; and in this respect the opinions of men will vary according to their own notions of morals and religion.
    4. It is conceded that in this kind of action it is difficult to lay down a satisfactory’ rule «by which to measure damages. Yet the necessity of a rule that limits the recovery to a pecuniary loss, flowing necessarily from the death, is not denied. • And it has uniformly been held, in actions of this description, that the recovery must be confined to losses of a strictly pecuniary character, although in the statute giving the action the words “ pecuniary injury!) have not been employed. (Blake v. The Midland Railway Co. 18 Adolph. & Ellis, N. S. 93; Dalton v. The South Eastern Railway Co. 4 Com. Bench, N. S. 296; Duckworth v. Johnson, 4 Hurlst. & Norman, 653; Franklin v. The South Eastern Railway Co. 3 Hurlst. & N. 211; Pennsylvania R. R. Co. v. McCloskey, 23 Pa. R. 526.)

      IV. The jury were also instructed that, in estimating the damages to be awarded, they should take into consideration the loss the children had sustained in reference to their mother’s nurture and physical training, and of such instruction as can only proceed from a mother; and which, but for her death, they would have received at her hands.
    1. The loss of nurture, physical training, &c., is not necessarily a pecuniary loss, any more than the loss of moral instruction. If it be admitted that by' the death of the mother the children were deprived of what is called “maternal nurture,” “physical training,” and of “such instruction as can only proceed from a mother,” it is still insisted that no court can see, as a necessary and probable result, that a pecuniary loss to the children will be the consequence;
    ' 2. At the time of the mother’s death the youngest child was nine years of age, and the eldest was twenty-one; and ■in respect to the three elements of damage referred to, there was no evidence in the cash relating to the past, and nothing upon which any court or jury could form any conjecture -as to the future. There was no evidence of any special “ nurture” or “ physical training,” or of “ such instruction as can only proceed from a mother;” and certainly if the jury are to consider present or prospective 'losses with reference to the award of a pecuniary compensation, they must know, or have the means of ascertaining, what is the extent of the loss, before they can affix to it -a pecuniary value. ,
    3. It will be difficult for any one to say what is meant, or what the jury understand by the loss of “such instruction as can only proceed from a mother.” It is impossible in any case to say what such instructions are. The language has no -certain meaning, and conveys no definite notion of anything. The instructions of one mother widely differs from another’s. 'One may instruct her children in vice, and another in virtue; one may treat them brutally, and another with the tenderest care. The court, before it can approve or disapprove these instructions, must be able to say what was the nurture, the training and instruction, the loss of which was to be compensated in money. Ho coixrt can say from anything in the case what particular thing the charge refers to, or how the jury could have considered it, for there is no evidence or anything in the case to guide the jury in making an estimate of damage for such loss.
    4. It is denied that a jury can award damages with respect to a pecuniary injury, except the damage is proved or evidence given upon which an estimate may be made. The language of the statute giving this action clearly implies that damage must be shown by evidence before a jury can award it; for they “may give such damages as they shall deem a fair and just compensation” with reference to the pecuniary injuries resulting from the death. They cannot know what is a fair and just compensation without knowing what the injuries are or probably will be, and this they cannot know except from proof. They cannot give a fair and just compensation for a loss without knowing what the injured party had lost. In this case the most ingenious mind will fail in' the effort to discover what the nurture, training, or instruction was, the loss of which the jury were directed to give a pecuniary value to. The language of the English statute is, that the jury may “give such damages as they think proportioned to the injury.” Under this the court of exchequer held it to be “ clear that damage must be shown,” and that a jury “ought not to make a guess in the matter.” (Franklin v. Southeastern Railway Co., 3 Hurlstone & Norman, 212, 214; Duckworth v. Johnson, 4 id. 652.)
    5. The inconvenience, if not the absurdity of imposing-on a jury the duty of fixing a pecuniary value for the loss of a parent’s care, protection, and assistance; or, as in this case, the mother’s nurture, training, and instruction, is well illustrated by a writer in the London Jurist, who says that “ in whatever light we look at the subject, either of money or morals, we become perplexed in the attempt to pursue it;” and in suggesting the practical difficulties which will arise, he supposes an accident to happen to a railway train by which the six following fathers are killed: an archbishop, a lord chancellor, an East India director, a lunatic, a wealthy but immoral man, one virtuous but a bankrupt, and it is easy to see the impossibility of a jury mating an estimate of the pecuniary value of the parent’s care, protection, assistance, nurture, training, and instruction, which each of their families would lose by the death of the parent. (London Jurist, vol. 18, part 2, p. 1; 1 American Railway Cases, 447; Redfield on Railways, 338.)
    . Y. The judge refused to instruct the jury that the damages to be awarded were such only as were sustained by the infant children of the deceased; and did instruct them that if they should fairly conclude that the children at any age would receive pecuniary benefit from the instruction and counsel of the mother, they were entitled-to allow for it such damages as would naturally and proximately result.
    1. This part of the charge is open to the same objection that has been before urged to other portions of it in the preceding points, and to the further objection that under it the jury were permitted to make an annual allowance to each of the children, for the longest period of human life, for pecuniary damages resulting from a loss of imaginary instruction and counsel.
    2. If there be any ground for jnaking a pecuniary allowance to the infant children of a deceased mother for the loss of nurture, instruction, &c., the reason and rule ceases with the minority of the child. After the age of twenty-one the right of the parent to the services of the child is gone, and there is no farther obligation on the part of the parent for its support. When that period arrives the parent and child become, in every legal aspect, entirely independent of each other. The legal duty of obedience on the part of the child no longer exists; and it is too much to say that the law can tolerate a recovery of damages which may result from the loss of counsel and instruction which one party is under ho obligation to give or the other to obey.
    3. The notion that any such damages may be awarded involves the wildest conjecture. Of necessity, they can be regulated by no rule, because nothing can be known or predicted of the destiny of any family after its members have attained their majority. And the history of any one furnishes no guide as to what may be the destiny of another; and the relations that thereafter exist between parents and children are as various as the tastes, habits, capacity, as well as the infinity of accidents and contingencies that make up the history of human life. And it is not unfrequent that in after life the child becomes the adviser, instructor, and protector of the parent, and for the loss of expectations of future pecuniary benefit from a son over age an action by the father has been maintained. (Dalton v. The Southeastern Railway Co., 4 Common Bench R. 296.)
    4. It would seem to follow that the court must surrender to a jury the right to award damages in cases of this nature according to an arbitrary discretion, or the right to give them must be altogether denied, for it is obvious that no rule of law can be invented by which they can be measured.
    VI. It was held on the trial that there could be no recovery for damages of any kind which the husband had sustained by reason of the death of his wife, and under this rule it is impossible to discover the principle upon which evidence of the capacity of the wife to conduct business and make money 'which belonged to the husband’s estate could be admitted for any purpose.
    1. It is quite certain that this business capacity,! however great or however usefully employed, could not in this action enure to the benefit of the husband or to the children; for no portion of their earnings belonged to them, and their loss could not be made a ground of damage in their favor.

      2. The plaintiff was allowed to give evidence tending to show that the deceased was extensively engaged in the business of making shirts and bosoms for dealers in the city of New York, and it is said the evidence was offered merely to show; her ability for business and her relation to the family.
    3. It is difficult to see how evidence of her ability for business was pertinent to the question of damages to be recovered for the benefit of the children when the rule was distinctly laid down that they could, under no circumstances, recover any damages for the loss of anything she might earn. Besides, the evidence did not show whether she made or lost money in that business; and therefore nobody can tell whether the exertion of her business capacity was beneficial or detrimental to the husband’s estate. Not only was the evidence improper, but upon it the jury were erroneously 'instructed that they might consider the business capacity of the mother in reference to her competency to discharge her duties towards the pecuniary benefit of the children in their intellectual, moral, and physical training.
    4. The evidence did not show, and the jury could not know, whether her business capacity was of a character calculated to lead to bankruptcy or fortune; a,nd without this knowledge no jury could say whether any instructions which she had given or might give the children would be likely to direct them in the line of pecuniary success or disaster; and for this reason the evidence should have been rejected or the jury told to disregard it.
    VII. An examination of adjudged cases, arising under statutes like that under which this action was brought will show that the only ground upon which damages can be rightfully awarded is the ability of the deceased to earn money and acquire property for the enjoyment of those who are to benefit by the recovery; and the jury have been permitted to award prospective damages, upon the theory that if life had continued the deceased would have continued to prosper as he had previously done; and it is put upon the ground of “ the reasonable expectation (of the surviving relatives) of pecuniary benefit, as of right or otherwise, frtim the continuance of life.” (4 Common Bench E. 304; 18 Adolph. & Ellis, N. S. 93.)
    1. And it is believed that no reported ease can be found where damages have been recovered for a pecuniary loss occasioned by death, in which the plaintiff has not been required to furnish evidence of the value of the income of the deceased, dependent upon life; and upon this data the jury were authorized to consider how far the surviving relatives had been deprived of the benefit of this income by the death complained of; and this view was substantially taken by one of the judges of this court when this case was here before. (24 New York E. 481, 482.)
    2. And it is submitted that this view must prevail if a recovery is to be confined to pecuniary damages, to be awarded upon any reference to the pecuniary value of a life. It is made by this statute a matter of merchandise, and it has no money value to those concerned in its continuance beyond the ability of the deceased to accumulate money and property in the enjoyment of which the injured parties, it is reasonable to be believed, would have participated.
    3. This case was tried by no such rule, nor any rule that necessarily limited the verdict to mere pecuniary damage. The jury had no certain guide in the evidence or in the charge. They were set afloat upon the sea of mere conjecture, and the result is a verdict to the extreme limit of the law, in a case where the evidence does not show that the deceased ever added one dollar, in money, to her husband’s estate, and where, there is every reason to believe, that she never could have been of $5,000 value, in money, to her children, if she had lived to the allotted ago of man.
    4. It was ruled in the case that the children having no interest in money or property that she acquired during life, could recover nothing for any loss in that respect which her death occasioned, and her husband could recover nothing on that account because he was not of her kin. There was, therefore, no basis for the award of pecuniary damages to the children,- and the jury should have been instructed to give only nominal damages.
    5. Besides all this, the legal duty of the nurture, training and support of the children, was upon the husband; and if he could recover nothing on account of the wife’s death, it is difficult to see the principle upon which the death of the mother can be made a ground of pecuniary damage to the children on account of their nurture, instruction and training, when the legal duty of making provision for all that is upon the husband. All she did, or could do, was to aid him in the discharge of that duty, and upon her death he was required to discharge it through the agency of another.

      D. L. Seymour, for the respondent.
    I. The defendants are liable to an action for damages by reason of the death of Mrs. Angeline Tilley^ the wife of the plaintiff. The statute under' which this action is brought, is of general application. It gives the action whenever the death of any person is caused under the circumstances stated in the statute. The language of the act is: “Whenever the death of a person shall be caused,” <fcc., ***** “then and in every such case, the person who or the corporation which would have been liable if death had not ensued, shall be liable to an action for damages,” &o. (Session Laws of 1847, 2d vol. 57.4, § 1.) Not only is the language but the spirit and object of the statute of general application. Its object, as was declared by this court in Oldfield v. The New York and Harlem, R. R. Co. (14 N. Y. Rep. p. 317), “manifestly was to impose on corporations and others more care in regard to human life; and that they might not escape the consequences of their wrongful acts by the death of the person injured.” The statute is based upon the humane and sensible theory that human life is valuable, not only to the possessor himself, but to his kindred; that the life of each and every person, whether that person be a parent or a child, a husband or a wife, is valuable to some other person. In such cases it gives it the character of property. “It is a statutory property, created by statute and vested in the family of the deceased;” nobody else has a right to it, or to dispose of it. It is in some sense making merchandise of life, and therefore in a degree repugnant to refined and sensitive minds.” (Yertore v. Wiswall and others, 16 How. 12, 13.)
    n. The right of action in this case is perfect. “ The only condition on which the right of the administrator to sue depends, is' the common law right of the injured per-' son to maintain an action if he were liviiag.” (Quin v. Moore, 15 N. Y. R. 432.) All the essential facts upon which this right depends are, by the pleadings in this case, admitted. In the complaint it is charged, and not denied in the answer, that while the wife of the plaintiff was a passenger in the cars of the defendants, and on the defendants’ railroad, “ by the gross carelessness, negligence and unskillfulness of the agents and servants of the defendants, a collision occurred upon the said railroad of the defendants,” * * “ and she was thereby bruised, Avounded and injured, so that in consequence of such bruises, wounds and injuries, so as aforesaid, received by the said Angeline, she remained and continued in great pain and suffering for about seven days, and then died of such wounds.” Although the Avife is dead, there are children who are her next of kin, and the language of the statute “ for the exclusive benefit of the widow and next of kin of such deceased person,” is satisfied by the existence of the next of kin only. (Oldfield v. The N. Y. & H. R. R., 14 N. Y. Rep. 316; Green v. Hud. R. R. R., 32 Barb. 25; Tilley v. The Hud. R. R. R. Co., 24 N. Y. Rep. 471-474.) The words “ next of kin,” as used in the statute in question, refer merely to the relationship, and not to the right, under the statute of distributions, to take the personal property of the deceased: They are a part of the comprehensive class of kindred. Lord Coke describes them as the “ next of blood.’ (Hensloe’s Case, 9 Coke R. 39; 1 Williams on Executors, 343.) In the former decision of this case, after saying that the “ next of kin, are embraced in the language of the statute,” the court declares that “ the injury to the children of the deceased, by the death of their mother, was a legitimate ground of damages.” This could not be, unless they are in view of this statute “ next of kin ” of their mother, although their father be living; for the statute gives damages only in reference to “ the pecuniary injuries resulting to the widow and next of kin.” In Elmsley v. Young (2 Mylne & Keene, 82, 780), it was held that the words “ next of heir ” meant the “ nearest of blood,” following Lord Coke’s definition. But if it shall be contended that the words “ next of kin,” as used in the statute of 1849, are not to be construed simpliciter, or according to the general meaning of the words, but in the particular sense in which they are used in the statute' of distribution, according to which the statute of 1849 provides the verdict shall be distributed as between the widow and next of kin, it still follows, that the children of the deceased are regarded by the statute of 1849 as the “ next of kin,” for the purposes of this distribution. In the language of Justice Hogeboom, in Yertore v. Wiswall (16 How. 12,13), the life of the deceased was a statutory property, created by statute and vested in her family. Nobody else had a right to it or to dispose of it. This court has also decided (Dickins v. N. Y. Central R. R., 23 N. Y. R. 159), that “ the money to be recovered is not for the benefit of the estate generally, and that it does not become assets, to be administered according to the general law of distribution.” # * “It is the pecuniary injury resulting to the wife and next of kin, which is to be estimated; but the injury to the husband, when it is the wife whose death has been caused, is not spoken of as a ground of damages. And the husband is not embraced within the description of the next of kin of his wife.” And the court also say in this case, “ the ground upon which damages are to be estimated * * * is the pecuniary loss which certain parties connected with him (i. 'e. the deceased), by the ties of marriage and consanguinity, have sustained on that account.” Thus, it appears that this statutory property belongs, on the death of the wife leaving a husband and children surviving, neither to her husband nor to her estate, but to her next of kin, i. e. her children, who are her nearest relatives by “ consanguinity.” The statute of 1849 does not declare that the recovery shall be for the benefit of the “ widow,” and such persons as shall under the statute of distributions be entitled to it, as “next of kin” of the deceased. But it gives the recovery absolutely to the “widow and next of kin,” and then proceeds, to direct the distribution among them to be in the proportion provided by law. The statute creates the property, and appropriates it exclusively to the" “widow and next of kin,” and directs it to be distributed among them in the proportion prescribed by the statute of distributions. As by the decision of this court above cited, the husband cannot recover damages, in case of the death of his wife, for his benefit as next of kin, nor as part of her estate, it follows that he cannot, as her administrator, intercept any recovery; but that such recovery enures exclusively to the benefit of her next of kin, who are her children, and it is to be held by him for their use. Any other construction would, in the case of the death of a wife leaving a husband and children surviving, render this remedial statute a nullity, and leave the children, whose parents had been killed by the gross negligence of the • defendants, remediless.
    III. The action was properly brought in the name of the personal representative of the deceased wife. The second section of the statute, as amended by the act of 1849, expressly provides that “ every such action shall be brought by and in the names of the personal representatives of such deceased person.” • (Sess. Laws of 1849, p. 388; Green v. Hud. R. R. R., 32 Barb. 25.)
    IY. It appears from the above propositions that this action was correctly brought, and that the plaintiff was entitled to recover damages therein. This was conceded on the trial by the request made by the defendants’ counsel of the court, to direct “ a verdict to be entered for nominal damages.” And it is the law as settled by this court that the personal representatives of the deceased are entitled to recover at least nominal damages. (Quin v. Moore, 15 N. Y. R. 434.)
    Y. Twelve exceptions were taken by the defendants on, the trial to the admission of evidence offered by the plaintiff. All these exceptions but two—the fifth and sixth— were taken upon objections made, without stating any ground of the objection. . The counsel merely stated that he objected to the question or to the evidence.
    1. Such an objection to the admissibility of evidence is too general and will .be disregarded by the court in reviewing the case, &c. (Norman v. Wells, 17 Wend. 142-3. Cowperthwaite v. Sheffield, 3 N. Y. R. 243-8. Newton v. Harris, 6 N. Y. R. 345.)
    2: The fifth exception was to the following question: “ Did she instruct the children? ” This was objected to as' immaterial. And the sixth exception was to the question: '■l State generally the manner in which she carried on the shirt and bosom making business? ” This and all the succeeding testimony in relation to that business was objected to on the ground of irrelevancy. The whole of this evidence, as well that referred to in the fifth and sixth as in all the twelve exceptions, related to the situation and condition of the plaintiff and his wife in life, and particularly to her ability, both physical and mental, to discharge her duties in the family, and to transact business. It showed that the plaintiff was a mechanic; that his business required him to be much of his time away from home; that his wife at home took care of the family, attended to her family duties and household affairs, nursed her children, helped to make their clothing, instructed them in domestic affairs, and in matters generally pertaining to a religious arid a business education; and that she had the capacity to superintend a Sabbath school in the church with which she was connected, and to exhort in the church. That in addition to these domestic duties she carried on the shirt and bosom, making business, and the manner in which she carried it on by her personal care and superintendence, and it was so extensive as to call her to the city of New York from time to time, to transact business with persons in that line of business there. All these facts and circumstances were substantially alleged in the complaint, and by defendants’ answer left for proof. The object of this testimony was as avowed by the plaintiff’s counsel on the trial, not “for the purpose of showing that she carried on a business on her own account, but merely to show her ability for business, and the relation in which she stood to the family.” That is the relation of a mother, who gave her personal attention to the nurture and education of her children, her domestic affairs, and to her business generally, and to her social and public duties.
    3. The question before the jury was one of mere pecuniary damage, and the whole of this evidence was pertinent and eminently proper in reference to the pecuniary loss to be estimated by the jury. The statute itself gives the rule for estimating the damages. Its language is “in every such action the jury may give such damages as they shall deem a fair and just compensation not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death to the wife, and next of kin of such deceased person.” It is a fair and just compensation estimated with reference to the pecuniary injuries resulting from such death to the next of kin.
    4. In this view of the statute, it may be asserted in general terms that evidence tending to show the condition in life, and the sphere of action of the person from whose death the pecuniary injuries result, and the physical and mental capacity of such person, is proper evidence for the jury. “It is a general and very sound rule of law that where an injury has been sustained, for which the law gives a remedy, that remedy shall be commensurate with the injury sustained.” (Rockwood v. Allen, 7 Mass. 254.) The remedy given by the statutes, under which this suit is brought, is declared .by the statutes themselves to be “ a fair and just compensation, * * * with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person.” The “pecuniary injuries ” constitute the only rule by which to measure the damages in such case. Evidence as to the condition in life and the circumstances surrounding the person from whose injury or death the pecuniary injuries result, always bears very strongly on the quantum or amount of damages sustained, and the proper compensation therefor. For the same reason, evidence showing the sphere of action or business relations of the person injured or killed, is proper. So also is evidence as to the situation of such person in relation to the next of kin, as of a parent to children, the age of the parent, the ages of the children, whether living at home with the parent, and dependent upon him or her for nurture, education and support, or whether, having arrived at mature age, they have left the family roof, and are living abroad, dependent only on their own efforts. More especially is evidence proper, showing at least ordinazy mental and physical capacity for the business of life, and for all the duties of life, social as well as domestic. The proposition is too clear for argument, that a greater pecuniary injury will result from the loss of a sound mind and a sound body than from the loss- of an unsound and feeble mind and body. This species of evidence showing the business relations of the party injured, and his capacity for business at the time of th¿ injury, is always received in the analogous cases of personal injury not resulting in - death. (Lincoln v. Saratoga & Schenectady Railroad Co. 23 Wend. 435.) In the case cited, the plaintiff,,who was a merchant in Boston and doing an extensive business, proved on the trial not only his business, its extent and the part which he personally performed in conducting this business, but he also introduced the opinions of witnesses acquainted with his business, proving the amount lost to his business, during the time he was detained therefrom by the injury on the defendants’ railroad. The court, after ruling that there was error in admitting the opinions of witnesses on the subject of damages, yet as to the facts proved, say: “The amount of business, the ability and attention of the plaintiff, the business season, the comparative inexperience of the partners, the money pressure in the market and the like; all this may be very proper for the consideration, of the jury and entitled to such weight in connection with all the other circumstances of the case in their estimate of the loss and damages as they may think it deserved.” * .* * * The same species of evidence relating to the “pecuniary injuries” sustained, has been sanctioned in cases arising under the statutes of 1847 and 1849, by virtue of which this suit is brought. In Green v. The Hudson River Railroad Company, (32 Barb. 25,) the action was brought by the husband as administrator of Ms deceased wife, who was killed by the negligence of the company. The deceased left no cMldren, and her next of kin was an aged mother residing with her and her husband, and dependent upon them for support. In discussing the question of damages, and the .charge of the judge given to the jury before whom the case was tried, Justice Allex remarks: “The damages are to be calculated upon a reasonable expectation of pecuniary benefit, or of right, or otherwise, from the continuance of the life. At the best, the measure of damages must be somewhat indefinite, and much must be left to the good judgment of the jury.” Again, he defines a peomiiary loss as follows: “A pecuniary loss is a loss of money, or of sometMng by wMch money, or something of money value • may be acquired.” .It is difficult to comprehend the proposition that the services of a'mother bestowed upon her cMldren in their nurture, support, and education, and also contributing to a fund in wMch they immediately participate, are not of ■ money value, and that their loss is not a pecuniary injury. But that the whole ground covered by all .the testimony objected to in this case is open to inquiry, and evidence is fully settled by the opimons delivered in Oldfield v. The New York & Harlem Railroad Co. (14 N. Y. R. 310), decided by this court in 1856. The action in that case was brought by the mother, the administratrix, for injury resulting from the killing of her daughter, a child about 7 years old. It was proved in that case, that the deceased lived with her mother who was her next of kin, and that she was an unusually intelligent and active child. Although the exceptions to the charge of the judge in that case were .so informally taken as not to he available to the appellant on the question of damages, yet that subject was fully consid-' ered by both of the learned judges who delivered opinions in that case. They both held that there was no error in the charge of the judge to the jury. And after deciding that the action can be maintained for the benefit of the “ next of kin” alone, when there is no “ widow” surviving, and that it is not required to sustain the action, that there should be proof of actual pecuniary loss, Justice Weight gives his views at length on the subject of damages. The law of this case upon this question of evidence was settled by the court of appeals when this cause was before them. (See 24 N. Y. E. p. 475.) They say: “We think it was not improper to allow the plaintiff to show the habitual occupation and employment of the deceased for the purposes for which it was offered and received on the trial, viz: to show her general capacity and relation to the family.” All the testimony given by the plaintiff respecting the deceased not only as to her age, but as to the relations she sustained to her family; the duties she then discharged; her business to a general extent, and her capacity, both mental and physical, was proper, in order to enable the jury to judge what was a just and fair cqmpensation “for pecuniary injuries present and prospective” “resulting” to the next of kin. The rule in such case, and under a similar law in Pennsylvania, allows damages for loss of prospective services. (See Pennsylvania Railroad Co. v. Zebe, 33 Pa. State Rep. 318; Pennsylvania Railroad Co. v. McCloskey, Adm. 23 id. 526.)
    5. The rule as to damages and as to the testimony proper to be given on the subject of damages is not changed in this case becausé there was no widow surviving, and the husband, who survived, was by law entitled to the earnings of his wife whilst she lived, and might, upon her decease, intercept the children, her “ next of kin,” as to her accumulations or gains of property. Her children were, during Her life, in the daily receipt of benefits flowing directly from her labors, in their care, nurture, and education, and in the addition which the results of her labors made to the common stock of property in the possession of their parents. The rule now established is that the plaintiff is not limited solely to the consequential damage which has actually occurred up to the trial of the cause, but he may go on to claim relief for the prospective damage which can then be estimated as reasonably certain to occur. (Sedgwick on Damages, p. 109; Hodsoll v. Stallebrass, 11 Ad. & E. 301; Quin v. Moore, 15 N. Y. Rep. 436; Administrator of Whitney v. Clarendon, 18 Verm. 252.) In estimating the pecuniary loss in such cases, all the consequences of the injury, future as well as past, are to be taken into consideration. (Curtis v. The Rochester & Syracuse R. R. Co. 18 N. Y. R. 534, 542.) Judge Cowen so held in 1838, in Ford v. Monroe (20 Wend. 210.) In cases authorized by the statute under which this suit is brought, both the language of the statute and the remedial character of the law itself authorize prospective damages to be recovered. The words of the statute, “ pecuniary injuries resulting,” refer not only to results present at the time the suit is brought, but to prospective results of the injury; and in the opinion delivered in Oldfield v. The New York & Harlem Railroad, above cited, it is conclusively shown by the reasoning of Justice Weight, that “ a construction which should exclude damages for prospective losses, and confine them to such actual pecuniary loss as was proved would render the law .nugatory.” It is conceded that the object of this statute is, in the language of Justice Weight, “ to impose on corporations and others more care in regard to human life.” The object of the statute is remedial to supply a defect of the common law by authorizing a recovery of damages for the most serious of injuries, and where none could have been recovered before the statute, and is also highly humane in its conservative influence for the protection of human life. No case would more clearly illustrate its utter failure ' to accomplish any of the beneficent purposes designed than would this case, if the positions sought to be maintained ' by the appellants shall be established by the decision of this court., The result would be that but little, if any, damage could be recovered under this statute for the death of a wife. The husband could recover nothing—-either for present or prospective damages. Nothing could be recovered by the children for present actual losses—inasmuch as during the life of the father all the results of the labor of the wife, whether expended upon business generally or in the care, nurture, and education of her children, would, on the appellants’ theory, technically belong to the husband, who, if of sufficient pecuniary ability, is held by law responsible for the proper maintenance of his children. And nothing could be recovered by the children for prospective damages, because they are prospective and to some extent contingent. And thus children-—infant children-—as in this case, bereft of their mother by the gross negligence of the defendants, would be left—under this highly remedial and eminently humane law—to recover merely nominal damages. While the wife herself, who, from her physical condition, her position in society, and her education, most needs the protection designed to be secured to all by this law, would be left with no higher guarantee for increased care of the public with regal’d to her life than the infliction oj: mere nominal dapiages, even in cases of the grossest negligence on the part of the defendants.
    VI. The exception of the defendants to the refusal of the judge to dismiss the complaint is not well taken. The plaintiff was entitled to recover at least nominal damages. (Quin v. Moore, 15 N. Y. R. 434.) In this case the court say: “ As the statute expressly gives the right of action, nominal damages, at least, could be recovered.”
    VU. The exception to the refusal of the judge to direct a verdict for nominal damages merely is not well taken. The statute under which this action is prosecuted is a remedial statute, and hence is to be literally construed so as to promote rather than defeat the objects intended by the legislature. (Beach v. The Bay State Company, 27 Barb. 248; Oldfield v. New York & Harlem Railroad, 14 N. Y. 310.) The true theory of the law is, that the children of the deceased (in this case five in number, and four of them infants), being her next of kin, are to receive through a recovery in an action brought by the personal representatives of the deceased the amount of the pecuniary injury resulting to them from her death. The rule of damages adopted by the court upon the trial was sufficiently favorable to the defendants. The statute confines the recovery to pecuniary injuries. This expression must receive a con-. struction in harmony with the remedial character of the statute, and it is apparent that the legislature did not intend to restrict the rule of damages to a mere mathematical computation, as such a rule would be wholly impracticable, and would entirely subvert the object of the statute. The loss which the children of Mrs. Tilley sustained in being deprived of the care, attention, and instruction of their' mother while not susceptible of precise mathematical computation, nevertheless resulted in serious pecuniary injury, for which they were plainly entitled to compensation. Such services have a substantial money value to the children, and ip was to compensate such loss that the statute was passed. The court of appeals in this .very action have established the rule of damages in such case. They expressly declare that it allows more' than nominal damages, and that the phrase “ pecuniary injuries” embraces the loss of the “ nurture and of intellectual, moral, aud physical training, and of such instruction as can only proceed” from a parent. (Tilley v. Hudson River Railroad, 24 N. Y. R. 471, 475.)
    Vni. The exceptions of the defendants to the charge of the judge are as follows:
    1. To the charge “ that all the children would participate in the amount recovered.” The exception is not well taken, because the court of appeals in this case have expressly declared that “the injury to the children of the deceased by the death of their mother was a legitimate ground of damages.” (See Tilley v. Hudson River Railroad Co., 24 N. Y. R. 475.) Neither the statute itself nor this decision of the court of appeals makes any exception among the children, who are all next of kin.
    2. To the charge “that in estimating the damages, the jury had a right to consider the loss the children had sustained in reference to their mother’s nurture and intellectual and moral and physical training, and of such instructions as can only proceed from a mother, and as they would otherwise have required at her hands,” the exception is not well taken, because the charge is in strict accordance with the decision of the court of appeals in this case.
    3. To the charge “ that the jury were not at liberty to speculate upon the probability of this loss being wholly or partially supplied by their father’s exertions or by his second marriage, or from any other source, and make an allowance to the defendants by way of deduction from the damages on that account,” the exception is not well taken. Such a rule of damages would be, in the language of the court of appeals in this case; “ far too speculative and uncertain for actual application.” Whether the losses of the children in such case would be in any degree supplied by the father, either by his exertions or by a second marriage, is and ever must be entirely conjectural; no rule to measure damages or graduate them could properly be based upon such fanciful considerations of the chances of the results of a surviving father’s future exertions in life, and. much less upon the chances of his second marriage and the contingencies arising from it.
    4. To the. charge “ that in estimating the pecuniary damages resulting from the injuries spoken of by the statute, the jury have a right, and it is their duty to, consider the age of the mother, her physical and mental capabilities, her capacity for business, the ages of her children, and the fact that at the time of her decease she and her children were residing together as a family.” The exception is not well taken. All these considerations bear directly upon the question of pecuniary loss to the next of kin of the deceased, especially if they be the children of the deceased. The considerations aré all necessary, in order that the jury may fairly ascertain the “ fair and just compensation * * * with reference to pecuniary injuries resulting from such death,” or the value of what the court of appeals in Quin v. Moore (15 N. Y. R. 432, 436), calls “ the interest which a person has in the life of another on whom he is dependent, or to whose services he is entitled,” and which the court say “ the legislature have chosen to regard as a.pecuniary right.” Evidence of this character has been sanctioned by our courts. In Quin v. Moore, above cited, the age of the deceased and his relationship to his next of loin were proved, and the court says “ in regard to the amount of damages, there wás evidence proper for the consideration of a jury.” In Oldfield v. The New York & Harlem Railroad Co., (14 N. Y. R. 317, 318), the court contemplates that the jury in such cases, in order to estimate the “pecuniary loss,” shall have before them the relationship and dependent condition of the parties, the ability of the husband to maintain the wife, and all other facts of the like kind.” In this very case the court of appeals have held that testimony of this character, though given to a much greater extent than on the last trial, was proper. Tilley v. Hudson River Railroad (24 N. Y. R. 471.) At page 475 the court say: “ Wo think it not improper to allow the plaintiff to show the habitual occupation and employment of the deceased, for the purposes for which it was offered and received on-the trial, namely, to show her general capacity and relation to the family.” If such evidence is proper, the charge of the judge directing the jury to its consideration was correct.
    5. To the charge “that the damages are to be assessed by the jury with reference to the pecuniary injuries sustained by the next of kin, in consequence of the death of Mrs. Tilley, and that their pecuniary injuries are not confined to the actual present loss which the death produces, and which could be - proved, but prospective loss also.” “It being understood that the prospective losses are such as the jury, believe will actually result to the next of kin as the proximate damages arising from the wrongful death.” The exception is not well taken. The only question raised by this exception, to wit: whether the damages to be recovered in this' action extend to prospective as well as present losses, .has been expressly decided both in Oldfield v. Harlem Railroad Co., above cited (see 14 N. Y. Rep. p. 318), and in this very cause when before the court of appeals. (24 N. Y. Rep. p. 475.) Speaking of the use of the word “ pecuniary” in the statute, the court say in the latter case: “It was- not used in a sense so limited as to confine it to the immediate loss of money or property, for if that were so, there is scarcely a case where any amount of damages could be recovered. It looks to prospective advantages of a pecuniary nature, which have been cut off by the premature death of the person from whom they would have proceeded.”
    6. To the charge “ that the injuries to the children of the deceased, by the death of the mother, is a. legitimate ground of damage, and that in estimating such damages, the jury have a right to consider the loss of the children of the deceased in reference to such intellectual and moral and physical training, and such instruction as. they would have received at her hand,” the exception is not well taken, because the court of appeals, in this very action, have decided that a loss by the next of kin in these respects, is a “ pecuniary injury,” within the meaning of the statute. (24 N. Y. Rep. 476.) ' “But infant children sustain a loss from the death of their parents and especially their mother, of a different kind. She owes them the duty of nurture and of intellectual, moral and physical training, and of such instruction as can only proceed from a mother.” * * * * “ The injury in these cases is not pecuniary in a very strict sense of the word, but it belongs to that class of wrongs as distinguished from injuries ,to the feelings and sentiments; and in my view it falls within the terms as used in the statute.”
    7. To the charge ■ “ that the jury have a right to consider the business, and other capabilities of the mother with reference to her competency to discharge her duties towards the pecuniary benefit of the children, in her intellectual, moral and physical training of the. children,” the exception is not well taken, because in this action when in the court of appeals, as has been above stated in reference to the fourth above exception, it was decided that the “habitual occupation and employment of the deceased” were properly proved “ for. the .purpose of showing the general capacity of the deceased and. her relation to her family.” These capabilities were, therefore, proper subjects of consideration by the jury in considering the competency of the deceased to the discharge of her duties as a mother to her children.
    8. To the propositions contained in the three requests made by the defendants to the judge to charge as stated, to wit: that the damages should be confined to the infant children of .Mrs. Tilley, and that no damages can be given for any loss. sustained by Mrs. Burdick, her eldest child, who was of age when her mother died, and that the damages recovered will be wholly the property of the minor children, the exception is not well taken. The statute itself gives the right of action and the right to recover damages to all the next of kin, making no exception of. adults. And the decisions of our courts recognize no such distinction in cases where recoveries have been had. In Green v. Hudson River Railroad Co. (32 Barb. 25), the next of kin was an aged mother; in Oldfield v. Harlem Railroad, above cited, the. only next of kin was an adult mother, and the person killed was a child only seven years of age, and in Quin v. Moore the sole next of kin was an adult'mother, and the person killed was a child only twelve years of age. Indeed the fair and legal construction of the language of the statute would extend the right to recover for the losses sustained beyond the relation of parent and child, even to collateral relatives. “It is-applicable to the case of any person, whose death ensues who could himself, if living, have maintained the action, and can not justly be limited to the cases of a wife for the loss of a husband, or bhildren of parents.” (Oldfield v. Harlem Railroad Co., 14 N. Y. Rep. 316.) So in this case, the court of appeals say (24 N. Y. Rep. p. 474), “next of kin are embraced in its language as parties who may be pecuniarily injured by the death of a person to whom they, stand in that relation; and it is not required that the degree of kindred should be such as to create the duty of sustenance, support or education.”
    9. To-the proposition contained in the four requests made by the defendants to the judge to charge as stated, to wit: that the jury should “ give only such damages as they (i. e..-the children) have sustained pecuniarily, or will sustain up to the age of twenty-one respectively,” the exception is not well taken. The language of the statute does not limit the recovery to the period of minority anymore than it limits the recovery to those who are minors at the death of the person killed. The words of the statute are general, and the damages recoverable are only limited by the “pecuniary injuries” which have arisen or which will actually result to the next of kin as “the proximate damages arising from the wrongful death.” The decision of the court of appeals in this case places no such limit to the damages to be recovered. (24 N. Y. Rep. p. 475.) “ The injury to the children of the deceased by the death of their mother was a legitimate ground of damages.” The inquiry into this “injury” is not to be restricted to the period of their minority. The exceptions to the refusals to charge “.that the damages recovered will be wholly the property of the minor children,” and “that the plaintiff, as administrator and guardian, must give security for the payment to thém of the whole amount ”■ are not well taken. These requests were entirely immaterial and irrelevant. ■ The statute evidently presumes that upon his appointment as administrator, the court appointing him such, does its duty in requiring the security enjoined by law: and when the fund recovered shall be received by the administrator, he will be required to account for it according to the rights of the next of kin.
    IX. The charge of the court was quite as favorable as the defendants could legally claim, and prescribed for the plaintiff’s recovery a very stringent rule of damages, and the damages are not excessive.
    X. The judgment of the supreme court should be affirmed, with costs, and with an allowance of ten per cent, by reason of the delay. (Code, § 307, sub. 6). This cause is. now before this court for the second time, on the appeal of the defendants, and it appears now that it is presented by them upon substantially the same testimony and exceptions to the rulings of the court as were presented on its first argument, and that all the questions arising in this case had before been decided by this court when the cause was for the first time before it
   Hogeboom, J.

Whatever may be' said of the precise points in judgment when this case was here upon a former occasion, it is plain .that the judge on the second trial charged the jury in conformity with the views presented in the prevailing opinion on the former appeal. Those views are supposed to have received the concurrence and approval of a majority of the court, and at all events to have suggested themselves to the court as probably sound, whether or not they were .entitled to absolute authority in controlling the proceedings on the second trial. It is not, perhaps, well to be unduly critical in concluding the parties by the former decision. The questions now arise and call for direct and precise adjudication; and as they have been fully, ably and learnedly discussed, perhaps no more fit occasion will be presented for a judicial exposition of the statute under which these proceedings were had, so far as the same remains open for examination.

Although the briefs now presented are somewhat voluminous, the. point's are few and are confined to exceptions to a single species of evidence, and to exceptions to the charge and refusals to charge. They may be ranged under the following heads:

1. Exceptions to the charge that the jury might take into consideration the nurture, instruction and physical, moral and intellectual training which the mother gave to the children.

2. Exceptions to the refusal of the judge to restrict the damages to the minority of the children.

3. Exceptions to the charge that prospective damages were allowable. ■ •

4. Exceptions to the evidence of the business capacity of the mother.

The charge of the judge was explicit that the damages must be limited to pecuniary injuries; and! he said that in estimating them they had a right to consider the loss (that is, the pecuniary loss) which the children had sustained in reference to their mother’s nurture, and instruction, and moral, physical and intellectual training. I think this does not imply that the children are necessarily and inevitably subjected to such a loss, but leaves it to the jury to determine whether any such -loss has been in fact sustained, and if so, the amount of such loss. This is the fair scope and meaning of the charge, and if it was not sufficiently explicit, should have been made so by a direct request for such purpose. This understood, I regard it as unexceptionable. It is certainly possible, and not only so but highly probable, that a mother’s nurture, instruction and training, if judiciously administered, will operate favorably upon the worldly prospects and pecuniary interests of the child. The object of such training and education is not simply to prepare them for another world, but to act well their part in this, and to promote their temporal welfare. If they acquire health, knowledge, a sound bodily constitution and ample intellectual development under the judicious training and discipline of a competent and Careful mother, it is very likely to tell favorably upon their pecuniary interests. These are better, even in a pecuniary or mercenary point of view, than a feeble constitution, impaired health, intellectual, ignorance and degradation and moral turpitude. To sustain the charge, it is enough that - these circumstances might affect their pecuniary prospects. It was left to the.jury to say whether in the given case they did so or not, and if so, to what extent. It is no answer to this view to say that wealth is sometimes associated with infirm health, mental degradation and moral turpitude. Cases of this kind do occur, but they do not make the rule,, nor tend to show that the healthy growth and expansion of the physical, intellectual and moral powers with which a kind providence has endowed us do not tend to our worldly advantage. I do not understand from the phraseology of the statute that an extremely nice and contracted interpretation should be put upon the term “pecuniary injuries.” A liberal scope was designedly left for the action of the jury. They are to give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries' resulting from such death. They are not tied down to any precise rule. Within the limit of the statute as to amount, and the species of injury sustained, the matter is to be submitted to their sound judgment and sense of justice. They must be satisfied that. pecuniary injuries resulted. If so ¿atisfied, they are at liberty to allow them from whatever source they, actually proceeded which could produce them. If they are satisfied from the history of the family, or the intrinsic probabilities of the case, that they were sustained by the loss of bodily care, or intellectual culture, or moral training, which the mother had before supplied, they are at liberty to allow for it. ■ The statute has set no bounds to the,; sources of these pecuniary injuries. If the rule is a dangerous one, and liable' to abuse-, the legislature and not the courts must apply the corrective.

The charge is supposed to have been particularly objectionable because it set before the jury moral training and culture as one of the sources of pecuniary benefit,,which the jury were at liberty to consider. It would be an effectual though technical answer to this exception to say that the charge was not objected to specifically on that ground, and that if the charge is sustainable on the score of physical and mental training supplied by the mother, it cannot be rejected as erroneous because in the same sentence moral culture was included without a specific objection. But I think it defensible on the grounds already advanced, that moral culture, like bodily health and mental development, improve and perfect the man and fit him not only for a more useful but a more prosperous career, for worldly success as well as social consideration.' It is not essential to show that they necessarily result in direct pecuniary advantage; it is sufficient that they may do so; that they often do so; that it is possible and not improbable that such may be the result, and that, therefore, these items may be set forth and presented for the consideration and deliberation of the jury, to be disposed of as they shall deem to be just. I think the exception is not’ well taken if they may possibly result in pecuniary benefit and do not tend in a contrary direction. I'concede these are quite general and to some extent loose and indefinite elements to enter into a safe and judicious estimate of actual pecuniary damage, but I am unable to find in the statute a restriction which shall confine it within narrower limits.

Nor do I perceive any sufficient legal reason for limiting the damages to the minority of the children if the jury are legally presuaded they would contiriue after that age. It cannot be denied that the deprivation of parental instruction and training and discipline, after that age, is more or less detrimental to the child in a pecuniary point of view, and I see no arbitrary injunction in the statute peremptorily to exclude such considerations from the jury. The judge seems to have submitted this part of the case to the jury with cautious directions. He instructed the jury that if they could, under the evidence, fairly conclude that the children, at any age, would receive pecuniary benefit from the instructions and counsel of the mother, they were entitled to allow for it such damages as would naturally and proximately result. The judge further charged that beyond the age of twenty-one years the jury must proceed with caution, and allow only those damages-which, under the evidence, they should find would and did reasonably and proximately result from the death of the mother by the wrongful act of the defendants. He further stated to the jury that he did not charge that the jury must allow for damages beyond twenty-one years. Assuming, as I think we must, that, there is not, either in the statute or in principle, any peremptory injunction to confine the damages absolutely to the minority of the children, the case seems to have been put to the jury on this point with proper limitation's. „

Nor do' I think it was erroneous to instruct the jury that while they must assess the damages wifih reference to the pecuniary injuries sustained by the next of kin in consequence of the death óf Mrs. Tilley, they were not limited to the losses actually sustained at the precise period of her death, but might include also prospective losses, provided they were such as the jury believed, from the evidence, would actually result to the next of kin I as the proximate damages arising from the wrongful death. ■

If. damages of the character alluded mo, to wit: those arising from the deprivation of the training and education which the parent would bestow were allowable at all, the loss which the children would sustain by the death must necessarily be such as should arise from the nurture and. training to be subsequently bestowed. That which had been already given, and of which the children had already reaped the benefit, could not be increased by the continued life of the parent, nor curtailed by her sudden death. The result had been already realized. But her sudden and wrongful removal was the withdrawal—the permanent and perpetual withdrawal—of a moral and intellectual .fund from which the children were constantly deriving pecuniary aliment and support. And it is this withdrawal which formed the basis of the whole allowance for any damage arising from this source. The length of time such benefit would have been enjoyed was left to the jury, under proper instructions. They were charged to find it from the evidence; they were charged to limit the recovery to such damages as would actually result, and to such damages as were proximate and not remote.

The only remaining question concerns the admission of evidence in relation to the capacity of the mother to conduct business and make money.

If the results already announced rest on a sound foundation, then this evidence was proper, as aiding the jury in arriving at a proper result in regard to the pecuniary benefit which the mother was- to her children, and the capacity of the mother to bestow such training, instruction and education as would be pecuniarily serviceable to the children in' after life. It is not denied that if the mother had, by her industry and business capacity, acquired a certain pecuniary capital, the amount of it would be proper to. be proved. Would it be improper to show that if was likely to be increased by her industry, her economy, her capacity for business, and her judicious conduct of business affairs? All these are elements of pecuniary success— component parts in fact of that pecuniary capital, of the continued exercise and employment of which the children were entitled to the benefit, and of which the wrongful act of the defendants deprived them. This was evidence, moreover, of the circumstances, situation, engagements and surroundings of the family, which seems on general principles always proper to give with the view of daguerreotyping to the jury the actual condition of affairs, which it is so important for them to understand, the extent and details of which must generally be left to the sound discretion of the trial judge. It contains no positive illegal element, and may often be of essential service in giving to the jury a practical view of the case.

Most of the views here presented are discussed and elaborated in the opinion pronounced when the case was here on a former occasion (24 H. Y. 473 to 477), and their pertinency sustained by considerations more direct and practical than those which are here urged. I refer to them for additional light on this subject. My object here has been mainly to present some general additional views which might possibly aid in a proper interpretation of the statute in question.

I think no error was committed at the trial, and that the judgment of the supreme cóurt should be affirmed.

Weight, Mullin, Ingeaham, Davies and Denio, Jus- . tices, were also in favor of affirmance. Johnson, J., was also for affirmance, on the authority of the former decision in this case; but if the question was open he would agree with Sellen, J., who read an opinion for reversal, and a new trial. Judgment affirmed.


author: Johnson, J.

text:
    Abraham Bulson v. William H. Lohnes.
    A submission was made to three arbitrators, with a provision that the award should be in writing signed by the three, “ or any two of them,” and ready for delivery by a certain day fixed. Only two of the three arbitrators met and heard the proofs and allegations of the parties. The third had due notice of the time and place- of hearing, and appeared there, but declined taking any part in the proceedings. The award was afterwards made by the two who heard the proofs and allegations.

      Hdd, that the hearing not having been according to the statute, and not sanctioned by one of the parties, the award was a mere nullity, and could not be enforced.
    At common law, before the revised statutes, under such a submission two arbitrators might lawfully meet and hear the proofs and allegations of the parties, where the third had notice and refused to attend and take part in the proceedings; and an award made by the two who heard the matters submitted, under such circumstances, was a valid and binding award.
    But the 7th section of the title of the revised statutes “ Of arbitrators” has changed this rule, and requires that upon all written submissions alhthe arbitrators must meet together, and hear the proofs and allegations of the parties. '

      Appeal from a judgment rendered at a General Term of the Supreme Court in the Third District,

    The action was brought upon an award of arbitrators. The parties agreed in writing to submit certain matters in difference between them to three arbitrators, and provided in the agreement that the award should be made in writing under the hands of the arbitrators, or any two of them, and be ready for delivery on or before the second day of April, 1860. On the 13th of March, 1860, the three arbitrators met,- took and subscribed the oath as arbitrators, and-appointed the hearing for the 22d of the same month. On the day thus appointed, the parties and two of the arbitrators attended, but the third did not attend, and the matter was adjourned by the two to"the 28th of the same month, at 10 o’clock A- M., neither party dissenting. The third arbitrator was duly notified of the adjournment, On the 28th, the adjourned day, the three arbitrators and the plaintiff appeared, but the defendant did not appear or attend.. The third arbitrator, who was absent on the previous day appointed, refused to act or take any part in the hearing, although he remained at the place a part of the time while the two others were examining the witnesses. The other two determined to go on with the hearing, and did so, and afterwards made their award in favor of the plaintiff, signed by the two only, for $300. On these facts the judge at the circuit ordered a verdict in favor of the plaintiff for the amount awarded, with interest, to which the defendant’s counsel excepted. At the close of the evidence the defendant’s counsel made a motion to dismiss the complaint, which was denied, and exception duly taken by the defendant’s counsel. The defendant made a case and exceptions, and moved at the general term for a new trial. The motion was there denied, and judgment ordered for the' plaintiff in the verdict, and the defendant brought his appeal to this court.

      M. J. Townsend, for the appellant.

      R. A. Parmenter, for the respondent.
   Johnson, J.

Only two of the three arbitrators chosen met and heard the proofs and allegations of the parties. The third had due notice of the time and place of hearing, and appeared there, but declined publicly to take any part whatever in the proceedings, and did not remain or act during "the trial. The award was afterward made by the two, before whom the matters submitted were heard. The question to be determined is, whether the award thus made is valid, and can be enforced by action.

The submission was to three, arbitrators, with a provision that the award should be in writing signed by the three, “ or any two of them,” and ready for delivery by a certain day fixed.

There can be no doubt that at common law, before the revised statutes, under such a submission, two arbitrators might lawfully meet and hear the proofs and allegations of the parties, where the third had notice and refused to attend and take part in the proceedings; and that an award made by the two who heard the matters submitted, under such circumstances, was a valid and binding award, This was settled in England at an early day, and upon full deliberation. (Goodman v. Sayres, 2 Jac. & Walk. 261; Delling v. Matchett, Willis, 215; S. C. Barnes, 57; Sallows v. Girling, Cro. Jac. 278; Watson on Arbitration, 115; Kyd on Awards, 106-7; Green v. Miller, 6 Johns. 39; Crofoot v. Allen, 2 Wend. 495.) It was held that by the latter clause of the submission the entire authority was disjoined, so as to make it a submission to the lesser number to hear, as well as to determine. . This is still the rule of law in this state, unless it has been changed by the revised statutes. By the statute (2 R. S. 542, § 7), it is provided that “all the arbitrators must meet together, and hear all the proofs and allegations of the parties; but an award by a majority of them shall be valid, unless the concurrence of all the arbitrators be expressly required in the submission.”

It is claimed, in behalf of the plaintiff, that this pro vi-, sion of the statute has reference to arbitrations where the submission provides for a judgment in some court, to be entered upon the award, and no others, and that all the provisions of title 14 of the statute above referred to relate exclusively to such arbitrations, and do not control or affect in any manner arbitrations in which no such clause is inserted. All other arbitrations, it is contended, are still governed, in all respects, by the rules of the common law, I cannot concur in this view, nor is there any authority to sustain it. Many of the sections in the title, doubtless, do relate exclusively to arbitrations in which the submission provides for the entering up of a judgment on the award. Those especially which provide for confirming, vacating, modifying, or correcting the award, entering judgment thereon, reviewing and ..enforcing the .judgment, and the like. But it is entirely clear, I think, that most of the other provisions of the title were designed and intended to regulate and control, by uniform and definite rules, all arbitrations upon written submissions in this state. This, I think, plainly appears upon the face of the statute. It is entitled ‘1 Of arbitrations,” without qualification. The first section then goes on to provide that all persons, with certain specified exceptions, may, by an instrument in writing, submit to the decision of one or more arbitrators any controversy existing between them, which might be the subject of an action at law, or of a suit in equity, except as in the act is otherwise provided.” The section then goes on to provide that the parties “ may, in such submission, agree that a judgment of any court of law, and of record, to be designated in such instrument, shall be rendered upon the award made pursu ant to such submission.”

It is quite obvious that it was the design of the framers of the statute to leave it entirely optional with the parties to insert in the written submission provided for, the agreement for the entry of a judgment upon the award, or not, ,as they might elect. Provisions are made for carrying such an agreement into effect where it should be inserted in the submission; but it by no means follows, nor is there any thing to show that the other provisions of the statute do not apply where there is no such agreement in the written submission, If it is in writing it comes within such provisions of the statute as are applicable to the particular submission agreed upon.

The second section absolutely prohibits a submission respecting the claim of any person to any estate in fee or for life to any real estate.. The language is: “Ho such submission shall be made.” This undoubtedly refers to the submission in writing, provided for in the first section, whether.it contains the provision for the entry of judgment or not. At least it may be- safely affirmed that such has been the general understanding of the courts, and the profession as to the force and effect of this s'ection, and this court has so regarded it. Olcott v. Wood, (14 N. Y. Rep. 32,) was a case where the. written submission contained no agreement for the entry of a judgment upon the award, and yet the case turned entirely upon the question whether the claim submitted came within the prohibition of this section of the statute. No one pretended that the statute did not apply, if the submission was of a forbidden claim-Indeed, we have only to look into the notes of the revisers on this subject to become entirely satisfied that this prohibition was intended to extend to all written submissions to arbitrators, upon grounds of public policy. If it be conceded, as I think it must be, that the second section applies to written submissions generally, no good reason can be shown why other sections containing general provisions do not. The plain inference is that they were intended so to apply, as there is. nothing to indicate a contrary intention. It was expressly held by the chancellor, in Bloomer v. Sherman (5 Paige, 575), that the last three sections of the title were applicable to arbitrations on written submissions generally. The vice-chancellor, in that case, had decided the same way, and I think they were entirely correct. Nothing to the contrary of this has been any where decided. All that was decided by the late court for the correction of errors, in Wells v. Lain (15 Wend. 99), was that the statute had not abolished paroi submissions of matters in difference, to arbitrators, and that awards in pursuance of such submissions were still valid as at common law. To the same effect is Diedrick v. Richley (2 Hill, 271). Crofoot v. Allen (2 Wend. 495), was an action upon an award made before the revised statutes. There are several cases in the reports, which are cited by the defendant’s counsel, m which it has been assumed by the court, that the general provisions of the statute were applicable to, and controlled, the proceedings before arbitrators generally, when acting under written submissions, but as the point was not raised in any bf them, I do not regard them as of any considerable weight as authority. I entertain no doubt whatever that such was the design and purpose of the statute, and am clearly of the opinion that the seventh section has changed the rule of the common law in regard to the meeting and hearing of the proofs and allegations of the parties, by all the arbitrators chosen in and by the written submission. -The intention to work this change clearly .appears in the note of the revisers upon this section. Reference is there made to the case in 11 Johns. 402, in which the rule is laid down in reference to a trial before referees, that they must all meet and hear the evidence; and also to the case in 6 Johns. 39, in which the rule is stated in reference to the hearing before arbitrators, and after remarking upon the difference, the revisers add, “yet the same principle should apply to this case.”

If I am right in this, it follows that the hearing,' not having been according to the statute, and not sanctioned by the defendant, the award is a mere nullity and can not be enforced. ISTo action will lie .upon it, and the plaintiff . should have been non-suited, or a verdict ordered for the defendant. The judgment should, therefore, be reversed, and a new trial ordered, with costs to abide event.

All the judges concurring, judgment reversed.