220 Pa. Super. 455 | Pa. Super. Ct. | 1972
Opinion by
This is an appeal from a jury verdict of $51,328.25 damages against appellant under the Wrongful Death and Survival Acts of the Commonwealth of Pennsylvania, following a trial before Judge Joseph E. Gold
Decedent was a retarded 15 year old boy. He died several hours after being hit by one of appellant’s trains on July 23, 1964. The jury’s determination of the negligence of appellant’s engineman is not contested on this appeal. Further, of the total verdict returned in both actions, appellant does not challenge the $5,000.00 under the Survival Act awarded for pain and suffering nor $5828.25 of the $7328.25 awarded in the Wrongful Death action. Appellant does attack the remaining $40,500.00 of the verdict as being excessive and inconsistent with the charge of the court. Appellant also asserts as error, the admission of certain evidence and the court’s refusal of two particular points for charge.
At the time of his death the decedent was classified as retarded educable, with a mental age of 7y2 years. His intelligence quotient was 55. Appellee produced expert testimony indicating that during his life expectancy decedent would have been capable of limited learning and obtaining employment in any of a number of manual jobs which normally developed persons usually find tedious. In recent years employers have become increasingly more receptive to the idea of hiring the retarded for such work. There was additional testimony of the probable remuneration decedent would have received in such positions.
The measure of damages in death cases was established in Pennsylvania by Murray v. Philadelphia Transportation Co., 359 Pa. 69, 74, 58 A. 2d 323 (1948),
Despite the Murray rule, verdicts in death cases requiring a determination of net earnings and the application of the “present worth rule” have often been unreasonable, illogical, and unfair.
“Interrogatories to the Jury
(R. 229a)
In the Event That Your Finding Is For the Flaintiee You May Return Two Verdicts as Follows:
I. Survival (Estate)
(Here insert the total of the earnings per year after age 21 which the jury decides the decedent would have earned for his work expectancy keeping in mind that his age expectancy is 49.7 years) ....................... f140,800
Deduct therefrom the probable cost of his future maintenance for the same period ...................... $ 74,800
Net earnings ................. $ 66,000
Net earnings reduced to present worth........................ $ 89,000 [*]
Pain and suffering ............... ,f 5,000
Total Verdict .....$ 44,000
II. Wrongful Death (Family)
(The earnings which the decedent would have had for a period of three years from age 18 to 21) .......... $ 9,600
*460 Deduct therefrom the probable cost of his maintenance by his parents .. f 5,100
Net earnings ................. $ 4,500
Contributions to his parents to age 21 $ 1,500
Value of service to his parents to age 21............................... $ 0
Hospital bill ..................... | 609.25
Funeral bill...................... I 719.00
Total Verdict ..... $ 7,328.25
Totai..............| 51,328.25”
The crux of this case is the jury’s determination of the present worth of decedent’s net earnings (asterisked [*] dollar amount), which appellant argues is excessive and inconsistent with the charge of the court.
The controlling rule of law here is stated in Swartz v. Smokowitz, 400 Pa. 109, 161 A. 2d 330 (1960), quoting Justice Kephart in Brown v. Quaker City Gab Go., 274 Pa. 289, 117 A. 681 (1922) : “ ‘Where the evidence shows no justification for the award made, and it is so clearly beyond reason as to lead to the conclusion the amount must have been reached as a result of some misconception of law or evidence, if not partiality, prejudice, or sympathy, — -whatever the impelling motive, — if, under the circumstances, it is so out of proportion to the damages proven as to make necessary its being set aside as excessive, it will be so ordered.’ ” [Citation omitted.] The Court in Swartz further found that a new trial limited to damages was warranted because the amount of the verdict supported the trial judge’s conclusion that “the jury did not apply the present worth rule, and that its enormous verdict . . . was the result of a misconception of the law or of prejudice, partiality, or sympathy”. 400 Pa. at 117.
The jury here determined, by its answers to the trial judge’s interrogatories, that decedent would have had
Reversed and remanded for a new trial limited to the issue of damages.
Brodie, supra, at 301-302 notes that: “Trial judges and lawyers freely admit that the application of the ‘present worth rule’ is beyond the understanding and capabilities of most lay persons serving on juries. ... In some jurisdictions in the United States, the courts simply ignore the rule as hopelessly difficult for the jury to follow.” [Citations omitted.]
We recognize that such evidence is not conclusive but merely serves to assist the jury in their calculations and that there are many factual determinations which they must make before such expert testimony is even helpful. However, because the only testimony as to the “present worth rule” is presented via an expert, the jury is not justified in completely disregarding the application of the rule where its use is mandated.
Since appellant prevails on this issue we do not reach its other contentions.