Opinion
October 25, 1955.
Appeal from Supreme Court, New York County, AULISI, J.
Patrick E. Gibbons of counsel ( Raymond G. Scully with him on the brief; Galli Locker, attorneys), for appellant.
Irving Payson Zinbarg of counsel ( Zinbarg Carroll, attorneys), for respondent.
Upon the record here presented, there is no basis in the proof submitted by the plaintiff to justify the award of $20,000 made by the trial court for the wrongful death of plaintiff's intestate. The latter at the time of her death was 64 years of age. She was survived by her husband who was 73 or 74 years of age and by seven adult children, the youngest of whom was 35 years old. One son was disabled and lived at home with his parents. Another son was confined in a mental institution.
Two daughters of the deceased were called as witnesses. One of them testified upon direct examination in answer to a leading question that her mother kept house and "took care of * * * [her sons] and all that." This is virtually the only testimony as to the activities of the deceased. The husband was not called as a witness. It was stated by plaintiff's counsel that the father was ill but on at least two occasions, when defense counsel objected to certain questions, counsel for the plaintiff threatened to produce the husband as a witness.
There is proof, as stated, that a partially paralyzed son lived with the deceased and her husband. There is nothing from which an inference might be drawn as to what services the deceased rendered to this son or the other members of the family. This omission is all the more grievous in the light of plaintiff's bill of particulars that the deceased immediately prior to the accident was employed and earned approximately $40 weekly. While this claim was withdrawn upon the trial, it highlights the strange failure to present any proof as to the activities of the mother.
There is always an inherent difficulty in determining just compensation in a death action. Absent any proof, however, none of the recognized rules for measuring damages may be applied. There is no proof of damage to sustain the award made and the facts are insufficient from which a finding may be made as to the pecuniary loss, if any, that was sustained by reason of the alleged wrongful death.
The judgment should be reversed upon the facts and a new trial ordered, with costs to appellant payable on termination of the case.
PECK, P.J., BASTOW, BOTEIN and RABIN, JJ., concur.
Judgment unanimously reversed upon the facts and a new trial ordered, with costs to the appellant payable upon termination of the case. Settle order on notice.