
    George A. Austin, as Administrator, etc., of Emma May Flynn, Deceased, Appellant, v. Metropolitan Street Railway Company, Respondent.
    
      Negligence — death of a married woman intestate, without issue, and leaving a husband from whom she had separated—measure of damages — right of the husband.
    
    In an action brought to recover damages for the negligent killing of a married woman, it appeared that at the time of the latter’s death she was twenty-six years old and was conducting a separate business; that slie died intestate, without issue, and was survived by her husband and by her parents; and that she had separated from her husband and resided with her parents.
    The court, over the plaintiff’s exception, refused to allow him to show the average weekly earnings of the decedent for the six months prior to her death, and also to allow the plaintiff to show the decedent’s expectancy of life.
    
      Held, that the exclusion of the proof offered by the plaintiff was erroneous, and that it was improper for the court, over the plaintiff’s objection, to order a, verdict for the amount of the decedent’s funeral expenses and for §100 as nominal- damages;
    That the decedent’s husband,was, by virtue of his marital right, the sole person interested in any recovery which might be had in the action.
    Appeal by the plaintiff, George A. Austin, as administrator, etc., of Emma May Flynn, deceased;, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk óf the county of New York on the 21st day of March, 1905,-upon the verdict of a jury rendered by direction of the ■ court, and also from an order entered in said clerk’s pffice on the 24th day of February,. 1905, denying the plaintiff’s motion for a new trial made upon the minutes. '
    
      Reuben Leslie Maynard, for the appellant.
    
      Bayard II. 'Ames, for the respondent. ■ '
   Clabke, J.:

This is an administrator’s action to recover damages ■ for the death of plaintiff’s intestate who was killed through the alleged negligence of the defendant’s servants. The plaintiff was the father of the intestate.

Mrs. Flynn, the intestate, was twenty-six years of age at the time of the accident and in good..health. She was conducting a manicure business on her own account, and had been for two and one-half years next preceding her death,, Was proficient in business, regular in her attendance and' punctual in her business habits. She was a well-built woman of medium height. - Her habits were good. ■ She was married at the age of eighteen. She had not lived with her husband since 1895. Thereafter and until her death she resided with her parents. The negligence of the defendant and the absence of contributory negligence on the part of the intestate are conceded upon this appeal; ■ Ah the close of the plaintiff’s case the defendant consented to the direction of a verdict for the amount of 'the funeral ¿xpenses and to $100 as nominal damages-. Plaintiff asked'to go to the jury on the question of damages, and excepted to the .denial of his motion. The court directed a verdict, for $119.50, the funeral expenses,' and $100 nominal damages, being in all $219.50. Plaintiff duly excepted to the- direction and to the denial of his motion to set aside the verdict and for a new trial. The decedent left her surviving no descendant, but a husband and á father and mother: Section 1903 of the Code of Civil Procedure provides that the damages recovered in such an action as the one at bar “ are exclusively for the benefit of the decedent’s husband or wife and .next of kin, and, when they are collected, they must be distributed * * * ' as if they were unbeque.athed assets.” Section 1905 of said Code ..provides that “the term ‘next of kin’ as used in the foregoing sections has the meaning specified in section 1870 of this act.” Section 1870 of said Code provides that “ the term ‘next of kin’ as used in this title includes all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent * * * other than a surviving husband or wife.” Under the provisions of sections 2732 and 2734 of the Code of Civil Procedure, relating to the- distribution of unbequeathed personal property, as interpreted by the courts, when a married woman possessed of a separate personal estate dies without descendants and without having made any disposition of it during her lifetime or by way of testamentary appointment, the title thereto vests in the surviving husband. (Miller v. Maujer, 82 App. Div. 419; Robins v. McClure, 100 N. Y. 328; Matter of Bolton, 159 id. 133; Matter of Thomas, 33 Misc. Rep. 729.)

Therefore, as section 1904 of the Code of Civil Procedure provides that “ the damages * * * may be such a sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is- brought,” the question in the ease at bar is limited to the consideration of the pecuniary injuries resulting from the decedent’s death to her husband, from whom she had been living apart for some years at the time of her death. It may be conceded that, in the absence of all proof of earning capacity or of any probability of the decedent’s life being of pecuniary value, the jury are not required as a matter of law to award substantial damages. The plaintiff attempted to make such proof. He offered to show what the average earnings of the decedent had been for every week for six months prior to her death, and excepted to the exclusion of the evidence. He put an'actuary on the stand and asked, “-Will you give me the probability of the life of a woman twenty-six years of age in good health ? ” This was excluded by the court upon-the ground that it was improper to leave to the jury the computation of damages from the probable life of the deceased and that it was immaterial; to which ruling plaintiff duly excepted. These two rulings were erroneous. They excluded two of the elements which have always been consideré! as proper upon the question of the pecuniary value of a human life. In Sauter v. N. Y. C. & H. R. R. R. Co. (66 N. Y. 50) the court said: “The Northampton tables were properly received. (Schell v. Plumb, 55 N. Y. 592.), jlhe probable duration of the deceased’s life was an element in estimating damages, and being so, it was proper to give this evidence upon the question.” In. Beecher v. Long Island R. R. Co. (53 App. Div. 326) it was held that the instruction that the widow was entitled to compensation for the earning capacity of her husband who was killed, and that what he did earn was evidence tending to show what his earning capacity was, although it was not complete arid conclusive evidence on that point, was correct. The -amount of the salary or earnings of /a decedent and the probable duration of his life are competent evidence to enable the jury to estimate the probable loss caused. to the widow or next of kin by decedent’s death. (Hinsdale v. New York, N. H. & H. R. R. Co., 81 App. Div. 617.)

But in this case the question arises, whether, if the proof of the expectancy of life and of the earning capacity of the decedent had been admitted, the direction of a verdict for nominal damages would have been proper. We do not think it would. The statute prescribes that “ the damages awarded to the plaintiff may be sucha sum as the jury * * * deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” The jury are the judges of the damages,' their verdict being subject to the supervisory power of the court, and unless there was no evidence of “pecuniary injuries,” it Would be. error to direct a verdict for a nominal amount. The decedent whs engaged in a separate business. She died intestate. Her personal estate vested on her death in her husband by virtue of his marital right, irrespective of the fact, that they were living separate and apart. That she might have made a considerable amount of money during her life, her earning capacity and expectancy of life having been proven, and might have died a natural death still intestate, seem to be no more uncertain contingencies than that infant's of tender years may growup, give their wages to their parents during their minorities and support them in an impoverished old age. In Birkett v. Knickerbocker Ice Co. (110 N. Y. 504) the decedent was the daughter of the plaintiff, four and one-lialf years old. Judge Earl, delivering the unanimous opinion of the court, said : The trial judge did not err in refusing to rule, upon the request of defendant’s counsel, that the plaintiff was entitled to nominal damages only. The rule of damages in such cases is a difficult one to apply. The pecuniary injuries ’ for which recovery only can be had, are always difficult of precise proof, uncertain and problematical, and what should be a proper compensation for them must always, upon such proof as can be made, be left to the judgment of the jury. * * * In estimating the pecuniary value of this, child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimation they should be, by all the chances of failure and misfortune. There is no. rule but their own good sense for their guidance, and they were not in this case bound to assume that no ¡Decuniary benefits would come to the next of kin from this child after her majority.” In Johnson v. Long Island R. R. Co. (80 Hun, 306; affd. without opinion, 144 N. Y. 719, but with ten per cent damages) Mr. Justice Cullen said: “ The prospect of the deceased accumulating property and the next of kin inheriting from him is not more speculative than the expectation of his acqiiiring money and the next of kin sharing in his bounty or beneficence while he should live.” Meyer v. Hart (23 App. Div. 131) was where a husband sued for damages for the death of his wife who was conducting a separate business, and the court said: “ As the deceased had no descendants or next of kin, the husband would have been entitled to the entire personal estate, " and evidence of the amount of the work, earnings and probable profits of the deceased was competent, and its exclusion constituted reversible error.” The rule deducible from many cases seems to be that, under the statute and the authorities, the amount of the damages is for the jury, subject to the supervision of the court; that when direct damages can be proved as funeral expenses and doctors’ bills, they must be shown; that as to resulting damage, each case must depend upon the circumstance of age, sex, employment, condition, intelligence, earning capacity, expectancy of life, summed up in the question, what was- the reasonable expectation of pecuniary benefit to the next of kin, by inheritance or otherwise, from the continuance in life of the deceased, worth in money ? (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 152; Countryman v. Fonda, J. & G. R, R. Co., 166 id. 209.)

For the errors pointed' out, the judgment and order must be reversed and a new trial granted, with costs to the appellant tp abide the event.

O’Brien, P. J., Ingraham and McLaughlin, JJ., concurred; Patterson, J., concurred in result.

Judgment and order reversed, new trial ordered, cost's to appellant to abide event/ . 
      
       Code Civ. Proc. chap. 15, tit. 3.— [Rep.
     