Lawler v. Nucastle Motors Leasing Inc. , 317 N.Y.S.2d 99 ( 1970 )

Martuscello, J. (dissenting).

The plaintiff, a divorcee, brought this action as sole beneficiary to recover damages for the wrongful death of her 23-year-old daughter. The decedent lived with the plaintiff and contributed to her support. At the outset of the trial the plaintiff’s attorneys moved to preclude the defendants from offering any proof upon the trial of the remarriage of the plaintiff. The court granted the motion.

In my opinion, the exclusion of proof as to the mother’s remarriage was error.

I am well aware of, and agree with, the long line of cases in this State, and indeed in the vast majority of States, which hold that the remarriage of a widow after the death of her husband cannot be taken into consideration in computing the damages recoverable for the wrongful death of the husband (Rodak v. Fury, 31 A D 2d 816; Murmann v. New York, New Haven & Hartford R. R. Co., 233 App. Div. 446, revd. on .other ground, 258 N. Y. 447; see, contra, Sipes v. Michigan Cent. R. R. Co., 231 Mich., 404; Jensen v. Heritage Mut. Ins. Co., 23 Wis. 2d 344). In such a situation, however, the negligence of the defendant results in the death of a spouse, and the fact of remarriage should not inure to the defendant’s benefit. However, in the .case at bar, where the defendant’s negligence results in the death of an adult child, it would seem apparent that the parent’s remarriage is not directly related to the defendant’s negligence.

Moreover, while a wrongful death action, vests at the time of death, damages are not always necessarily fixed at that time. In order to reduce the speculative nature of the damages in wrongful death actions, the courts have held that, where one who has been widowed because of a wrongful death dies after the commencement of the wrongful death action but prior to trial, the widow’s estate is entitled only to dama,ges sustained between the time of her husband’s death and her own death (Sider v. General Elec. Co,, 238 N. Y. 64, 69). The plaintiff herein had no legal claim for support by the decedent, an adult child (see Domestic Relations Law, § 32, former subd. 6, which subd. was repealed in 1967 [L. 1967, ch. 184, § 2] after the decedent’s death and prior to the trial). When the deceased in a wrongful death action is one who is under no legal obligation to provide support for the beneficiary during life, the deceased’s voluntary disposition to do so is of essential importance to the jury in determining pecuniary loss (Loetsch v. New York City Omnibus Corp., 291 N. Y. 308; Breckir v. Lewis, 21 A D 2d 546). It appears to me that the fact of remarriage of a parent substantially reduces the speculative nature of the period of time a 23-year-old child would be disposed to make voluntary contributions toward the maintenance of the parent’s household. This highly relevant testimony should have been allowed into evidence and considered by the jury in determining damages.

For the foregoing reasons, the judgment should be reversed insofar as appealed from and, as between the parties to this appeal, the action should be severed and a new trial granted.

Hopkins and Munder, JJ., concur with Rabin, J.; Mabtusoello, J., dissents and votes to reverse the judgment insofar as appealed from and, as between the parties to this appeal, to sever the action and grant a new trial, in an opinion, in which Christ, P. J., concurs.

Judgment reversed insofar as appealed from, on the law, and, as between the parties to this appeal, action severed and new trial granted, with costs to abide the event, unless, within 30 days after entry of the order hereon, plaintiff shall serve and file in the office of the Clerk of the trial court a written stipulation consenting to reduce from $55,000 to $30,000 the amount of the verdict in her favor and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed insofar as appealed from, without costs. The findings of fact below are affirmed.