On appeal from the Superior Court, Appellate Division, whose opinion is reported in 10 N.J. Super. 455 (1950).
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld and Ackerson. For reversal -- Justices Case, Oliphant and Burling. The opinion of the court was delivered by Ackerson, J.
This action arose out of a fatal accident which occurred on December 4, 1947, when James McStay, age 12, and his brother Francis J. McStay, Jr., age 10, were killed by an automobile operated by the defendant at a street intersection in the City of Bayonne. James died the same day and Francis the day after the accident. They were survived by their father, Francis McStay, age 39; their mother, Gertrude E. McStay, age 35, and two brothers, then 5 and 3 years old respectively, and a sister, age 9 months. The action was brought in the Hudson County Court, Law Division, by the father, as administrator ad prosequendum of his deceased sons, under the so-called "Death Act" (R.S. 2:47-1 et seq.) and also as general administrator of the estate of Francis who lived until the day following the accident. However, the father died on April 29, 1949, before trial, and the mother was substituted as plaintiff in the same representative capacities.
In the pretrial order defendant admitted liability and the trial was limited to the following issues: "To the pecuniary loss to the mother of decedents and present Administratrix Ad Prosequendum and general Administratrix, Gertrude McStay, and the pecuniary loss to the next of kin." The jury returned a verdict of $6,000 as damages for the death of each child, a total of $12,000, and judgment was
entered accordingly. Defendant thereupon moved for a new trial on the grounds the verdict was contrary to the charge of the court, excessive, and arrived at as the result of bias, prejudice and sympathy. The trial court denied the motion and, on defendant's appeal, the Appellate Division of the Superior Court affirmed the judgment, whereupon we granted defendant's petition for certification to the Supreme Court.
It is well to note in limine that the pertinent section of the Death Act permits the jury to assess "such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death to the widow, surviving husband, and next of kin of the deceased." This has been interpreted to mean the "deprivation of a reasonable expectation of a pecuniary advantage which would have resulted by a continuance of the life of the deceased." Carter v. West Jersey & Seashore R.R. Co., 76 N.J.L. 602 (E. & A. 1908). In applying this rule it was said in Cooper v. Shore Electric Co., 63 N.J.L. 558, 567 (E. & A. 1899):
"With respect to the damages recoverable in such a suit, they are not such as arise from injury to the feelings, but are awarded in reference to a pecuniary loss, and in estimating damages the jury cannot take into consideration mental suffering or loss of society, but must give compensation for pecuniary injury only. * * * Not that the proof with respect to the personal injury need be such that the amount of such damages may appear with exactness. If the evidence be such as to show a reasonable expectation of pecuniary advantage, the extinction of such an expectation by an act occasioning the death of the party from whom it arises will sustain the action, and it is for the jury to say under all the circumstances, taking into account all the uncertainties and contingencies of the particular case, whether there was such a reasonable and well-founded expectation of pecuniary benefit as could be estimated in money, and so become the subject of damages."
The evidence discloses that James and Francis, Jr., were bright, healthy, normal boys, doing well in school, actively helped with the work in and about the home and assisted in attending to the younger children. James, during the summer of 1947 earned from $3 to $5 per week by delivering newspapers. He had a life expectancy of 53 years and his
brother Francis, 55 years. The life expectancy of their mother was 33 years, but that of the three younger children is not revealed.
Defendant's brief on this appeal sets up four points as grounds for reversal. The first of these is to the effect that the trial court erred in refusing to charge defendant's fourth and fifth requests regarding the measure of damages. However, at the oral argument in this court, defendant's counsel expressly abandoned this point, conceding that there was no error in such refusal.
In his second assignment of error, defendant insists that the trial judge erred in propounding a hypothetical case to the jury in explanation of his refusal to charge the above-mentioned fourth request because, it is claimed, the hypothetical deliverance, following such refusal, amounted to an instruction to the jury that damages ...