This court having decided, upon a demurrer, that the action is maintainable, the judgment then given is decisive of the same question renewed upon the trial of the issue of fact. I dissented from the decision of the demurrer, *28for reasons which appeared to me entitled to weight, hut which failed to convince my brethren; and while T yield to the authority of the decision, I am constrained to withhold my assent from it as a sound exposition of the law. The statute authorizes an action to be brought when death is caused by the wrongful act, neglect or default of another, “ for the benefit of the widow or next of kin of such deceased person,” and authorizes the jury to give damages “ with reference to the pecuniary injuries resulting from such death to the wife or next of kin.” (Laws of 1847, p. 575. Laws of 1849, p. 388.) In the English statute of 2th and 10i7i Viet. c. 93, upon the samo subject, “ the wife, husband, parent or child” of the person whose death is complained of, are the persons named, and for whose benefit the action may be brought. In our statute it is the “ wife and next of kin.” The husband is not named, and it is some evidence that “ next of kin” was used in its legitimate and proper sense that the wife is especially named. The legislature evidently had not the vague idea that “ next of kin” included every one who could, by reason of mere relation to the deceased, share in his estate. All the cases agree that to maintain the action, there must be either a wife or next of kin to the deceased who have sustained a pecuniary loss by the death. There is certainly no widow in this case, who can be benefited by the money, and the husband is in no sense of the word “ next of kin” to the wife. The term is used to signify the relations of a party who has died intestate. Ho one, ordinarily and without something to indicate a different intent, comes within this term who is not included in the provisions of the statute of distributions. (Bouvier’s Law Dic. h. t. Hinckley v. Maclaren, 1 M. & K. 27. Leigh v. Leigh, 15 Vesey, 92. Garrick v. Lord Camden, 14 id. 372.) If the husband could have been entitled as' “ the next of kin” the wife need not and would not have been especially named. She is provided for in the statute of distributions with the next of kin, and there was less reason for naming her *29than for naming the husband, if both were intended to be brought within the terms of the act.
It is somewhat significant that the pleader, by whom the complaint was prepared, did not count the plaintiff among the next of kin and thus within the provisions of the act. After the statement of the cause of action, he says, “ whereby and by reason of the premises said Charles H. Green, the husband of the said Eliza, said Margaret Ford, the mother of the said Eliza and the next of kin of the said Eliza, suffered great damage and pecuniary damage to the amount of $5000 and upwards.” (And see Lynch v. Davis, 12 How. 323.) But the judgment of the court upon the demurrer is the law of the case, and the judge at the trial properly ruled that the action lay.
The general tenor of the charge was right, assuming that the action could be maintained, so far as it restricted the right of recovery to the pecuniary loss of the plaintiff; but exceptions were taken to specific portions of the charge, as authorizing the jury, in assessing the damages, to take into consideration circumstances and losses which did not and could not enter into an estimate of the pecuniary damages.
The jury were made the judges of the measure of damages, and the only restriction is in the statute giving the action, which limits the recovery to $5000, and defines the nature of the damages to be allowed. “ The jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.” (Laws of 1849, ch. 256, § 1.) Notwithstanding the discretion vested in the jury, it is the province of the court to give them definite instructions as to what may or may not properly be taken into consideration in estimating the pecuniary loss; and if explicit instructions are refused when asked to be given, or erroneous instructions given, it will be cause for a new trial. (Blake v. Midland (Railway Company, 18 Adol. & E. N. S. 93.) That the action is of recent *30origin, and the act by which it is given, if not somewhat obscure in its terms, at least is difficult of construction, furnishes a good reason why instructions should be very carefully guarded ; and courts should see that the jury have not either been misguided or left with uncertain and doubtful directions. After having directed the jury that the defendants were liable only for pecuniary damages, to the plaintiff, the judge referred to the circumstances to be considered by them in the assessment of such damages. He told them, in substance, that the pecuniary damages were to be determined in view of all the circumstances of the case, taking into consideration the loss of the services and society of the deceased, and the fact that she was an educated and amiable woman. This was but the statement of two distinct propositions : 1st, That pecuniary damages alone could be recovered; and 2d. That loss of service and society was to be taken into the account as a jjart of the damages. If this were so, the exception being general to both and the first being correct, the exception would not be tenable. But this not being a bill of exceptions but a case, if the charge was such as would be likely to mislead the jury, the court might grant a new trial, although the exception was technically too broad. The statement was, however, evidently intended, when read in connection with the parts of the charge which had preceded it, to state the elements which' went to make up the pecuniary damages for which the plaintiff might recover. Loss of service was a proper item of darhages, and to this extent no complaint is made, and there was no error, either, in saying to the jury that they might take into consideration the fact that the deceased was an educated and amiable woman. The pecuniary interest of a husband might and could be advanced more by a wife possessing these characteristics, than by one of an opposite character and temperament. The services of a refined and amiable wife would, •upon ihe truest scale of pecuniary estimate, be more valuable than those of a vulgar and unamiable shrew. But the judge united loss of society with loss of service, and in respect to *31both referred to the qualifications of the deceased. And as refinement of mind and manners would more greatly, enhance the value of the society than that of mere sendee or labor for profit, if loss of society was not a “ pecuniary loss” to be compensated for within the statute, the allusion to the qualifications of the wife, in that connection, may have readily enhanced the damages. The English statute, which did not in terms limit the damages to the “ pecuniary loss” sustained by the party for whose benefit the action might be brought, but empowered the jury to “ give such damages as they might think proportioned to the injury resulting from such death, to the parties respectively for whom and for whose benefit such action should be brought,” received a construction in Blake v. The Midland Railway Company, (supra.) It was decided, 1st, that the jury could give compensation for pecuniary loss only; and 2d, that in estimating damages they could not take into consideration mental suffering or loss of society. Baron Parke, on the trial, left it to the option of the jury to give damages on all or any of the grounds mentioned, intimating his opinion that there was no ascertainable damages on any ground but that of pecuniary loss, and a new trial was granted, for a misdirection. In this state the legislature have restricted the damages to a compensation for the pecuniary loss, a loss which may be estimated in money. It is not an action sounding in damages, in which a jury exercise a discretion and may give a solatium in respect to the mental suffering of the party, or a compensation for the loss of consortium, as in an action for criminal conversation. Pollard, O. B. ruled at nisi prius, in Gillard v. Lancashire and Yorkshire Railway Company, (reported in 12 Law Times, 356, and cited by counsel arguendo Blake’s case,) which was an action for the benefit of a widow, for the damages resulting from the death of her husband, that it is utterly impossible for a jury to estimate any sum as a' compensation for the injured feelings of the survivor; that all that is left which was applicable was the pecuniary loss sustained by his family. He said, “ The *32framers of the act never could have meant to give compensation to the parent for the mere deprivation of his son, or to the widow for that of her husband.” The plaintiff’s counsel observed, “ In that view a widower would not be entitled to sue for compensation for the loss of the society and comfort of his wife,” And the lord chief baron said, “ Clearly not, unless her death is the cause of a pecuniary loss to her husband.” The damages are to be calculated on a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life. At the best the measure of damages must be somewhat indefinite, and much must be left to the good judgment of the jury, but they must confine their inquiries to the pecuniary loss. (Franklin v. The South Eastern Railway Company, (3 Hurlston & Meriam’s Rep. 211;) Pennsylvania Rail Road Co. v. McClaskey, (23 Penn. Rep. 525.) Safford v. Drew, (3 Duer, 627,) supports this view of the act, and is an authority for excluding from the consideration of the jury the loss of the society of the deceased wife. The superior court affirm the decision of the queen’s bench in Blake’s case, (sup.) and apply its principles to the interpretation of our own statute. Oldfield v. The New York and Harlem Rail Road Co., (14 N. Y. Rep. 310,) decides, 1st. That there need be no proof of any pecuniary or special injury sustained by the next of Idn, but in the absence of such proof a recovery for nominal damages, at least, may be had; 2d. That it is not necessary that the next of kin should have a legal right to pecuniary benefit from the continuance of the life of the deceased; and 3d. That the damages may be assessed in reference to the prospective as well as the present loss. The two last propositions were involved and decided in Franklin’s case, (supra;) the court holding that a reasonable expectation of a pecuniary benefit to the party was sufficient. But Judge Wright does say that the jury “ were not to compensate for the pain and suffering endured by the deceased, or the anguish and mental distress of a wife or children incident to the loss of a husband or father, but were to measure the compensation by the pecun*33iary injury exclusively,” and to this extent affirms the doctrine of the court of queen’s bench. Quin v. Moore, (15 N. Y. Rep. 432,) is put upon the ground that the mother, by the death of her son, was deprived of his services to which she was entitled until he became of age. No pecuniary damage can be predicated upon the loss of the society of the wife. It is a case for which money cannot compensate, and cannot be estimated in money. A pecuniary loss is a loss of money, or of something by which money or something of money value may be acquired. See Beach v. Ranney, (2 Hill, 309,) and the cases cited by Bronson, J., and Ransom v. The New York and Erie Rail Road Company, (15 N. Y. Rep. 415.) The exception was proper to the entire sentence, which contained but one proposition, and that related to the considerations which might influence the jury in the assessment of damages. The judge united loss of society and loss of service as proper to be taken into the account, and both were included in the single proposition, and the counsel for the defendant very properly submitted a general exception to that proposition. But if this were not so, it is quite evident that the jury may have been misled by the remark of the judge, and a new trial should be granted.
Another part of the charge to which an exception was taken, or to which it is now claimed an exception was taken, is a part of a paragraph of some length in which several propositions are laid down, and which is only separated by a semicolon from the residue of the sentence. It is, “on the other hand they (the jury) were not bound to estimate the damages with precision and nicety.” This exception being general, following the entire paragraph, and “to this part of the charge” is too general, as every other proposition except the one indicated is perfectly right. The remark was not a happy one. If it was intended merely to say that the law prescribes no rule by which the damages could be definitely ascertained and measured, it was very proper and very true. But if it was intended to advise the jury that they were not to arrive *34at the acutal damages with all the accuracy of which the case was susceptible, having reference to the pecuniary loss of the party in interest, it was erroneous, as it gave to the jury a latitude and a discretion expressly withheld from them by the statute. One exception to the admission of evidence, I think, was well taken. The defendant objected to evidence of what the president of the defendant said about settling the claim. The negligence of the defendant, and the death of the intestate from such negligence, was admitted by the answer, and the only effect of the evidence would be to prejudice the jury against the defendants by showing an unconscionable defense" or harsh and oppressive treatment of the plaintiff, neither of which could legitimately influence the amount of the recovery. It is true the judge instructed the jury that the conduct of the defendant, or their president, in refusing to settle the claim, should not be taken into consideration in enhancing the damages. . But the evidence was admitted as competent and material, and had its effect before the antidote was administered, and too late for the antidote entirely to counteract it. (Worrall v. Parmelee, 1 Comst. 519. Osgood v. The Manhattan Co., 3 Cowen, 612.) The judgment must be reversed, and a new trial granted; costs to abide the event.
[Onondaga General Term, July 7, 1860.Allen, Mullin and Morgan, Justices.]
Morgan, J. concurred.
Mullís, J. concurred in the result, on the last ground, to wit, the admission of the declarations of the president of the defendants in evidence.
Judgment reversed.