Director General of Railroads v. Platt

HOUGH, Circuit Judge (after stating the facts as above). [1] The major portion of decedent’s income from earnings had been derived from bis office of clerk, and we entertain no doubt that the extent of those earnings was properly admitted in proving damages. The fact that at the time of trial the Attorney General had not fixed the salary of the office was properly laid before the jury as a circumstance for their consideration; hut, since by the statute the Attorney General’s discretion in the matter was to be guided by what the office had been worth during substantially the time for which plaintiff showed its pecuniary value, the importance of the act of Congress in this case was not great. [920] Damages, especially in causes like the present, are not -assessable with mathematical certainty; there is always a wide margin of discretion left for the jury, and the duty of the plaintiff is performed when the best evidence under the circumstances is produced, and that was done in the case at bar. It happens at times that even the best evidence affords no reasonable basis for damages. Concerning this no absolute rule need be, or perhaps can be, laid down; it is sufficient to hold here that the jury were reasonably warranted in finding (as the verdict shows) that what a man of Mr. Platt’s professional reputation, personal character, and general repute had annually made during the latest years of his life, he would continue to gain during the balance thereof. [2] Objection to the second class of evidence denies that it was lawful to show, in addition to how much the decedent had gained, what he did with it. Under the Vermont statute decedent’s personal representative was entitled to recover 'for the surviving wife and children “such damages as are just with reference to the pecuniary injuries resulting from such death.” It is in our opinion obvious that under this language the recovery of or for the widow and children of a man industrious and thrifty, yet generous, should be larger than if the decedent had spent an income of the same amount in dissipation or purely selfish indulgence. Consequently the objection thereto is held unwarranted. Exactly the foregoing distinction between the recovery appropriate upon the death of a “husband who maintained and cared for his wife” and that of one “indolent or thriftless” is taken in Lazelle v. Newfane, 70 Vt. 444, 41 Atl. 511. In Memphis, etc., Co. v. Letson, 135 Fed. 974, 68 C. C. A. 453, plaintiff was unable to prove the income of decedent, hut he proved “his mode of life (and what) he was in the habit of spending on his family.” This was sufficient evidence upon which to base a recovery. This decision was approved in The Saginaw (D. C.) 139 Fed. 909, affirmed 146 Fed. 724, 77 C. C. A. 150,1 where may be found numerous citations to the effect that in measuring damages the assessment is not to be governed solely by the earnings or income of the deceased, “but by what portion of the gross earnings or income the [widow] would probably have received from the deceased as his wife, if he had lived.” Finding no error-in the admission of evidence, the judgment is affirmed, with costs. Footnotes [1] The further affirmance in 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264, does not touch this point.