
    Eugene F. Medinger, as Administrator, etc., of Mary Medinger, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Actions for injuries resulting in death—power of the court to review the question of damages—not affected by the new Constitution providing that the amount recoverable shall not be subject'to any statutory limitation.
    
    The provision of section 18 of article 1 of the Constitution of 1894, that “ The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation,” was not intended to change the law previously existing relative to such actions, ■ except that the provision in question authorizes á recovery of pecuniary damages actually sustained, in excess of the limit of $5,000 which had previously existed.
    This provision was not intended to change the power of the Supreme Court to supervise, and in proper cases to reduce verdicts.
    In view of the removal of the limitation upon the amount recoverable in such cases heretofore imposed, it is more than ever essential that verdicts awarding damages for injuries resulting in death should be scrutinized and that they should be promptly corrected where they are not supported by substantial testimony.
    The test now, as before, is the pecuniary loss suffered, and where the basis of pecuniary loss is involved, obscure and difficult of reconciliation with the verdict rendered, the verdict should be corrected.
    Brown, P. J., and Bartlett, J., dissented from any reduction, being made in the amount of the verdict in this case, but concurred in the general views expressed • in the opinion of Hatch, J.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the City Court of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Morris & Whitehouse, for the appellant.
    
      Charles J. Patterson, for the respondent.
   Hatch, J.:

The verdict of the jury settled the question of the right of plaintiff to recover, and we find no error in the record in this respect which calls- for our interference. The amount of the verdict presents the only question upon which we have any difference of opinion. The injury which furnishes the basis of the action produced the death of plaintiff’s intestate. Prior to the adoption of the Constitution of 1894, the recovery in this action would have been limited in amount to the sum of $5,000, as that was the limitation of recovery in this class of actions then prescribed by law. (Code Civ. Proc. [1894] § 1904.)

The Constitution now in force, by section 18, article. 1, provides: “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.” It is suggested that it was the purpose and intent of the framers of this Constitution to permit a recovery in all cases where death was pro- ' duced by the negligent act of another, and deceased was without fault, beyond the statutory limitation that had theretofore prevailed, whenever the jury, in the exercise of their discretion, determined that the facts warranted it, and that this change in the fundamental law should be accepted by the courts as conclusive in the control of their action in the review of such determinations. And especially so when the court would have felt constrained to affirm a verdict for the full amount if the case had arisen under the statute in existence prior to the constitutional enactment referred to. We are' unwilling to adopt this construction of the Constitution. Beyond authorizing the recovery of actual damages sustained in excess of the limit which theretofore prevailed, we do not understand that the framers of the Constitution have or intended to change the law previously existing in any particular, or that they have furnished or intended to furnish any new. or different rule for the guidance of the court. The Code of Civil Procedure, prior to the present Constitution, by section 1904, provided that the damages to be awarded should be such sum as the tribunal trying the question of fact 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.” By a long course of judicial decisions, uniform in character, this rule has becomé firmly imbedded in the law, and we believe it has been held, without exception, that the damages which the statute contemplates are exclusively pecuniary. The present Code provision. usBs precisely the same language in this respect. (§ 1904.) Such is also the rule under Lord Campbell’s Act (2 Beven on Neg. 209, et seq.), from which our statute was derived. The. constitutional provision has not changed this rule in the slightest respect. Its language is: “ The right of action now existing * * * shall never be abrogated.” We shall be aided to a correct determination in the construction of this constitutional provision by an examination of the proceedings of the constitutional convention, which led to its adoption. From lack of a proper index or slightest clue to any subject-matter, the debates.of the constitutional convention are of small practical value. Little of certain value can be found except the whole be examined. Patience, however, has enabled us to lay hold upon this debate, but at a great sacrifice of time. There were two amendments relating to this subject introduced into the convention, resulting in a majority and minority report thereon from the committee having the matter in charge. The majority report recommended that the amendment be not accepted, for the reason that it was purely a matter of legislative concern. The minority report recommended its incorporation into the fundamental law. The majority report was disagreed to and the convention proceeded to consider it in committee of the whole. The. friction of debate gradually crystallized the views of the convention, until Mr. Marshall, voicing evidently the sentiment of the majority, said: “ I think it is pretty well settled that the opinion of this body is that limitations upon the amount of recovery, in cases which flow from injuries resulting in death, should cease. It is also, it seems to me, the idea of everybody present, who has expressed himself upon this subject in favor of such limitation, that the right of action now existing shall be continued. The fear is felt that perhaps the right of action might at some time be abrogated by the Legislature. To¡ cover both of these ideas I .have framed a provision.” Then followed the exact phraseology of the present section of the Constitution, except that the words “ now existing ” were transposed, and made to follow the word “ action ” instead of the word death.”' Continuing, Mr. Marshall said: The right of action which now exists is well defined in the statute. We all know what that is. It has been the subject of adjudication in this State for the last forty years. There is no doubt as to the meaning of this language, and,, therefore, by reference to the cause of action now existing, and declaring that the right of action shall further continue, it avoids any circumlocution which has been suggested by some of the amend ments.” (Record of Debates, Const. Conv. of 1894, vol. 2, p. 961.)

It thus clearly appears that not only does the language of the Constitution signify no change in this respect, but the language of its framers, in specific terms, shows that no change was contemplated, and that the rule so firmly settled, as to be known to all, should continue with the limitation removed, as we shall see, to meet the wants of a proper case. Practically the opponents to the change rested their opposition upon two grounds: First, that it was a matter solely for the Legislature; second, that its effect might be the ruin and impoverishment of small corporations, partnerships and individuals. Those favoring the measure replied, to this view by the assertion that it was practicably impossible to obtain favorable legislative action; that th&re was no force in the second ground of objection for the reason that the amendment did not change the law, but still left with the courts the question whether the recovery should be sustained ; that when the verdict rendered was not warranted by the evidence, or the damages were excessive, the courts might be trusted to apply the remedy, so that injustice could not be worked. The argument which evidently controlled the convention in its action consisted in the claim that the arbitrary limitation was •absurd and unjust in measuring the pecuniary value of all lives to the next of kin by the same arbitrary standard. That the life which was high in ability, which commanded and received a large income from trained faculties and exceptional talents, and from which the next of kin received the full measure of pecuniary benefit, was worth more than the life low in ability and capacity of earning power, even depraved in character and of little pecuniary value to the next of kin. And it was suggested that, upon trials under the limitation, little attention was given to the value of life in earning power, the history of the life and its merits little gone into, but that it was left upon meagre testimony in this-regard for the jury to say, between nothing and $5,000, what was its pecuniary value. That, if the limitation Was removed, the •actual-value of earning power, benefit, to the next of kin and consequent damage would find a field for proof. It was also pertinently suggested that, if there was a cause of action and right of recovery, why place a limit upon it when there was scarcely limit to its value. (Record of Debates, Const. Conv. of 1894, vol. 2, pp. 581-595, 651, 652, 947-962.)

It is evident from this debate and the arguments used that this amendment was adopted for the benefit of the next of kin of the bread winner, persons who, in fact, sustained large pecuniary dam- ■ age on account of the negligent act which removed the person and deprived dependents upon him of their substance, and which was not measured or recompensed by the sum awarded under the.limitation. To such persons it is the evident purpose to authorize a recovery measured by the actual loss sustained, which is to be established by proof. It was never the purpose to remove the limitation and authorize a recovery of damages in every case where death was a result, without regard to the measure of loss, except as it should be practically arbitrarily measured by a jury. There is nothing in the present statute authorizing such construction, or in the Constitution itself, as that leaves the law to be enforced as it has always been. When this section of the Constitution was finally adopted such was the express language óf many of the debates. Mr. Countryman said: “ The courts, as in all other cases, have the right, and it is their duty, to set aside verdicts which are excessive in amount. They are to be just, fair, honest verdicts, and, if they are excessive, the courts must exercise their jurisdiction in this case as in all others.” And this was the burden of the final debate in answer to the objection that small corporations and individuals might be ruined by a removal of the limitation. (Record Const. Conv. of 1894, vol. 5, pp. 2189-2195.)

We feel warranted, therefore, in saying that no change whatever was made, or intended to be made, in the law respecting the supervision of courts over the verdicts of juries in this class of cases. On the contrary, we are impressed with the fact that it is now more essential than ever that verdicts awarding damages should be scrutinized with care, and corrected without hesitancy, where they do not rest upon substantial testimony for their support. We still further fortify ourselves in this view by a consideration of the decisions of courts in other States, where a limitation upon the extent of recovery in these cases has never existed. (Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205; Rose v. Des Moines V. R. Co., 39 Iowa, 246 ; Little Rock Ry. Co. v. Barker, 39 Ark. 491; Penn. R. R. Co. v. Zebe, 33 Penn. St. 318.) In England the rule is the same. (Franklin v. South Eastern R. Co., 3 H. & N. 211.) And in Canada. (Hutton v. Windsor, 34 U. C. Q. B. 487.)

These cases all proceed upon the theory that the test is the pecuniary loss, and where that appears to be excessive it is the province of the court to interfere. It seems clear, therefore, that no change of the law was contemplated by the change in the constitutional provision, and courts are now, as before, called upon to exercise the power in a proper case. As we have before observed, the necessity of scrutiny, instead of being diminished, has increased. It has been said, with some authority to sustain it, that the Supreme Court had practically abdicated its power of review of verdicts of juries in negligence actions. From time to time we have been admonished as to our duty by the Court of Appeals, sometimes witli . nervous vigor and plain language. (Smith v. Ætna Life Ins. Co., 49 N. Y. 211-216.) Sometimes in a milder form. (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219-227.)

The only salutary way of now administering this statute, more . of a necessity now than ever before, and especially where the basis of pecuniary loss is involved, obscure- and difficult of reconciliation with the verdict rendered, is not found in abdication of its functions by the court; it must furnish the reason for revision, and it must ■ apply the remedy where the verdict has not substantial basis of support or is excessive in amount. (Lockwood v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 523-527.)

And it should be equally the court’s duty to ratify the verdict of a jury where the proof warrants it, without regard to its amount. Such we conceive to have been the design and intent of the framers of the Constitution, and in that spirit the law should be administered.

Applying these views to the verdict in this case and the evidence • upon which it is based, we think that it is excessive. Deceased was sixty-three years old, in good health; she did the general housework for the family. This consisted of plaintiff, who is sixty-five years old,' and five grown up. sons, three of whom lived at home. Deceased was in receipt of no income; her children had reached the estate of manhood, which lessened in a marked degree the necessity of maternal care. Her probable duration of life, according to the tables, would be about eight years. What was the pecuniary loss to the next of kin ? The value of the work which she did could hot have exceeded annually, upon any basis furnished by the record, $520, and this, we think, a liberal estimate. The value of those services could not increase, as her powers would naturally •diminish. In McIntyre v. N. Y. C. R. R. Co. (37 N. Y. 287) there was a recovery of $3^500; the woman was under fifty years •of age, earning a dollar a day. The Supreme Court reduced the recovery to $1,500. If that measure should be applied here, this verdict should be materially reduced. But we are mindful of changed conditions, to some extent, since that decision wag rendered,, and think we must view the case, having regard to present conditions. But in no view of the evidence can we see that the damages could exceed the sum of $5,000. Perhaps it is sufficient to sustain it at that sum.

We are quite conscious that the conclusion ■ at which we have arrived is not an exact logical deduction. The ingenuity of the human mind has not yet been able to compass and formulate a rule by which an exact measurement of damages may be reached in these cases. But we áre satisfied that the sum awarded by the jury in this case is far beyond the actual damage sustained, and while we may not be able to justify the sum to which the recovery .is reduced by the appilication of rules of logic, yet we feel quite confident in saying that we have approached far nearer to the justice of the case than the verdict accomplished.

The order should, therefore, be that the judgment and order appealed from be reversed and a new trial ordered, with costs to abide the- event, unless plaintiff consents to reduce the recovery to the sum of $5,000, together with a proportionate amount of the extra allowance, and -if he so consents then the judgment will be affirmed, without costs to either party in this court.

All concurred, except Brown, P. J., and Bartlett, JT., who dissented solely as to the reduction.

Brown, P. J., and Bartlett, J. (dissenting) :

In dissenting from Judge Hatch’s conclusions we do not desire to be understood as disagreeing with his argument upon the main question. We agree with him that in removing the limit heretofore imposed upon verdicts in actions for causing death, it was not intended to change the power of the- court to supervise and reduce such verdicts. Cases of this character are to be treated precisely as an action for injuries to a living person would be treated. Our power is a supervisory one, and we must give due effect to the judgment of the jurors.

The case is not to be treated on appeal as it would if we were called upon to fix the damages in the first instance. To justify interference with the verdict it must appear that some rule of law has been violated or else that it is so excessive as to indicate partiality, passion or prejudice in the minds of the jurors.

The verdict in this case is upon the border line. It probably is larger in amount than, the judges of this court would have awarded, but it is not beyond the fair inference to be drawn from the cir- • cumstances surrounding the deceased and her relations to her next ■of kin, and it does not indicate prejudice on the part of the jurors..

For these reasons we think the judgment should be affirmed.

Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to $5,000, with a proportionate part of extra allowance. If such stipulation is filed the judgment so reduced is unanimously affirmed, without costs. .  