Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
The defendant appeals from a judgment for damages resulting from the death of two children by the tortious act of the defendant. At the pretrial conference, the defendant admitted liability and left as the only issue to be tried, the amount of damages.
The statute permits the recovery only of a sum that represents the present value of the pecuniary injury sustained by the next of kin. That injury is the "deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased. * * * The jury must weigh probabilities and to a large extent form their estimate of damages on conjectures and uncertainties." Paulmier v. Erie R.R. Co. , 34 N.J.L. 151, 158 (Sup. Ct. 1870). In the present case, the decedents were two boys, one of them twelve years old and the other, ten. Their next of kin were their father, mother, two younger brothers and a baby sister; but before the trial, the father passed away. There was no evidence that, in the short time during which he survived his sons, he suffered any pecuniary
injury from their death. In the absence of such proof, no award could properly be made by the jury for damages sustained by him. Cooper v. Shore Electric Co. , 63 N.J.L. 558 (E. & A. 1899); Sider v. General Electric Co. , 143 N.E. 792; 34 A.L.R. 158 (N.Y. 1924); Van Beeck v. Sabine Towing Co. , 300 U.S. 342; 57 S. Ct. 452 (1937). Mr. McStay's demise left his widow and surviving children without the one who would normally have been the breadwinner of the family. In that situation, the two oldest sons, had they lived, might well have started work at an earlier age and made a larger money contribution to the support of the family than if their father had lived out his life expectancy. His death was a factor for the consideration of the jury in estimating the pecuniary injury to the other beneficiaries of the action. Carter v. West Jersey, etc., Co. , 76 N.J.L. 602 (E. & A. 1908). The cause of action vested upon the death of the boys but the quantum of damages was determinable in the light of the situation existing at the time of the trial. Francis v. A.T. & S.F.R. Co. , 253 S.W. 819; 30 A.L.R. 114 (Tex. 1923); Paragon Refining Co. v. Higbea , 153 N.E. 860 (Ohio 1925). This, of course, is similar to the rule in other tort cases; the jury do not shut their eyes to what happens between the day of the accident and the trial.
The principal reasons urged for reversal relate to the charge to the jury and the size of the verdict. Defendant's counsel had submitted a request to charge based on a passage from Maher v. Magnus Co. , 1 N.J. Misc. 469 (Sup. Ct. 1923); affirmed, 99 N.J.L. 514 (E. & A. 1924). The learned trial judge denied the request and then continued his charge to the jury:
"The charge requested says this" (actually the court reads from the Maher opinion, and not the precise words of the request):
"'In actions of this kind, for the death of a minor, the parent is entitled to the earnings of that child until the child becomes twenty-one years old or is emancipated, that is until the child leaves home and cares for itself. This boy was not earning anything at the time of his death. He had not been able to do any work, he was too
young; but the mother would be entitled to the sum, whatever it might be, that he would earn from the time he was able to earn until he was twenty-one years of age; but from that you should deduct the amount of money it would cost the mother during that time to support and clothe and educate him, because you see the mother is entitled to his earnings, but she is bound in return to support him, clothe him and educate him -- such education as the mother might give him -- until he becomes twenty-one years of age.'
"Ladies and Gentlemen, I do not charge that, because I don't think that is an accurate description of the law.
"I will give you a hypothetical case, merely for example.
"We will take a boy five years of age, who is killed by a locomotive, we will say. It is common knowledge that most boys stay in school until they are about 18 years old. During that time, the boy has to be clothed and fed and given spending money. It costs his mother and father a great deal of money, more than he would earn after school. It might cost $15 a week to bring that boy up, maybe more. The $15 a week is in the neighborhood of $750 a year. So, then you would take the years from 5 to 18, and there would be quite a sum of money -- $10,000 or more, to bring up that boy. Now if his earnings are to be deducted from that, the result would be that the earnings from 18 to 21 would not be nearly as much as it cost to bring him up. Therefore, there would be no damages on the death of ...