ANDREW MADIGAN, an Infant, by JAMES MADIGAN, His Guardian ad Litem, Respondent,
THE TOWN OF SCHAGHTICOKE, Appellant.
APPEAL by the defendant, The Town of Schaghticoke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 22d day of March, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk's office on the 2d day of April, 1909, denying the defendant's motion for a new trial made upon the minutes.
Arthur J. Case [John T. Norton and Charles I. Webster of counsel], for the appellant.
Thomas S. Fagan, for the respondent.
The plaintiff recovered a substantial judgment for injuries claimed to have been received because of the negligence of the highway commissioner in failing to repair one of the highways of the defendant town.
During the progress of the trial the plaintiff was permitted,
against the objection of the defendant, stated in various forms, to prove that the assessed valuation of the defendant was upwards of $2,000,000.
We are of opinion that the admission of this evidence was such error as requires a reversal of the judgment irrespective of the other questions raised or of the merits of the action.
If the defendant through its highway commissioner was negligent in not repairing the highway, and the plaintiff was free from contributory negligence, all he could recover would be simply compensation for his injuries. Such compensation he would be entitled to whether the defendant was rich or poor, and whether it was amply able to respond in damages, or whether payment of them would work a hardship. The natural and probable effect upon a jury of proof that the defendant town was rich and its assessed valuation large would be to lead them to assume that any verdict, or a large verdict, would be little felt by the individual taxpayer and could be easily paid by the town at large. It is the province of a jury to inquire, not what the defendant can pay, but what the plaintiff ought to receive, and it is the rule in actions for a wrong where only compensation can be recovered that evidence of the wealth of the defendant and his ability to respond in damages is incompetent and presumably pre-judicial. ( Myers v. Malcolm, 6 Hill, 292; Moody v. Osgood, 50 Barb. 628; Alberti v. N.Y. , L. E. & W. R. R. Co., 118 N.Y. 77; Hart v. Marsh, 61 Wis. 435; 4 Suth. Dam. § 1254; 2 Greenl. Ev. [5th ed.] § 269.)
At the time this evidence was introduced the defendant had proved that there were some ninety-five miles of highways in the town, and the learned trial court admitted the evidence upon the theory that it was material as showing the importance of the highway in question and the frequency of travel thereon and the character of its abutting property, and the learned counsel for the respondent seeks to sustain the ruling upon those grounds and upon the authority of Rooney v. Randolph (128 Mass. 580); Sanders v. Palmer (154 id. 475); Weeks v. Needham (156 id. 289), and O'Brien v. Woburn (184 id. 598). Those decisions only hold that proof of assessed valuation, in view of the Highway Law of that State, may be proved by the defendant. They do not hold that such evidence may be given by the plaintiff against the objection of the municipality,
and we are not cited to nor have we been able to find any case so deciding. It must be admitted that logically, if a municipality can properly prove its poverty as an excuse for not keeping a highway in repair, a claimant ought to be permitted to show its wealth as a reason why there was no lack of means to keep its highways in proper condition.
Whether the Massachusetts rule is based upon the peculiar form of its own statute or upon general principle, we do not think it is in conformity with the decisions of our own State or that it should be adopted by us. Our own courts have been zealous in prohibit, ing testimony which would show the poverty or riches of either party to a litigation in an action for tort where compensatory damages only are recoverable, and they have repeatedly reversed judgments where the poverty of the plaintiff has been proven or that a family of children for example was dependent upon him for support. ( Alberti v. N.Y. , L. E. & W. R. R. Co., supra; ...