58 A.2d 323 | Pa. | 1947
Lead Opinion
Defendant appeals from judgments for the death of James J. Murray, aged 2 years, 8 months and 20 days. The verdict was for the plaintiff in the sum of $1,000 on the count for the benefit of the parents under section 19 of the Act of April 15, 1851, P. L. 669, 12 PS 1601. The verdict was $14,000 on the count under the Act of July 2, 1937, P. L. 2755, 20 PS 772, authorizing suit by personal representatives in "all personal actions which the decedent whom they represent might have commenced and prosecuted . . ." Defendant's motions for a new trial and for judgments n.o.v. were overruled on condition that plaintiff file a remittitur reducing the $14,000 verdict to $10,500. The remittitur was filed and judgments were entered.
The infant, crossing 25th Street at or near Swain Street, in Philadelphia, was struck by defendant's north-bound street car and, without regaining consciousness, died almost immediately. The evidence would have supported a finding that the infant darted into the path of the car in circumstances in which the motorman should not have been expected to see him in time to avoid injury. On the other hand, there was evidence from which the jury might have found that the motorman should have seen him in time to stop the car. In that state of the record, defendant's motion for judgment n.o.v. was properly refused: compare Goldberg v. Phila. Rapid Transit Co.,
The debatable point in the appeal is the measure of damages recoverable for the estate of the infant pursuant to the Act of 1937, supra. "It has been suggested that if a tort causes death, ordinarily two interests have been invaded. The first is the interest of the deceased in the security of his person and property, an interest which *71 has been invaded by compelling him to endure pain and suffering and to submit to the loss of earnings. There is no question that this interest should be protected; moreover it seems clear that the recovery should be an asset of the estate and as such subject to the claims of creditors.1 The second interest is that of the deceased's relatives, an interest in the nature of an expectancy; their anticipation of sharing in his prospective earnings is necessarily destroyed by the termination of the victim's life. The problem of protecting these interests is two-fold: to exact compensation from the wrongdoer for the invasion of both interests, and to assure thereafter its distribution to those properly entitled."2
The origin of the common law rule denying a right to sue for wrongful death is described in Admiralty Commissioners v. S/SAmerika, 1917 A.C. 38, 50. The rule was superseded in this Commonwealth by three statutory provisions: one providing a right of action for wrongful death, and two providing for survival of rights that would otherwise have been lost under the common law rule. Section 19 of the Act of April 15, 1851, P. L. 669, 12 PS 1601, authorized suit, for the death, for the benefit of certain relatives. Section 183 of the Act of April 15, 1851, P. L. 669, provided for the survival of an existing action by substituting for the injured plaintiff who had brought suit and died before trial, his personal representative. The second survival provision is contained in the Act of 1937, supra, providing that if the injured person dies without bringing suit, his personal representative may sue for the benefit of his estate. The purpose of this legislation is to provide compensation, not punishment; there is no ground for holding that the legislature intended a duplication of damages. In order to avoid such duplication of damages, *72 Pa. R. C. P. No. 2202 provides that both classes of claims shall be included in one action.
The first assignment of error complains of the following instruction to the jury: "After having determined what the life expectancy is, you would then come to a conclusion as to what the value of his economic life from age twenty-one would be, and that means his earnings without deduction during that period." Later, in the charge, the jury was instructed: "If you decide that the parents are entitled to a verdict and the administrator also is entitled to a verdict, you reduce the amount of what you consider the computation to be to its present worth." The instruction to "come to a conclusion as to what the value of his economic life from age twenty-one would be, and that means his earnings without deduction during that period" is challenged on the ground that the basis should have been net earnings and not gross earnings. In Pezzulli v.D'Ambrosia,
The instruction given to the jury in the Pezulli case, supra, required the application of a different measure of damages from the instruction given to the jury by the learned trial judge in this case. It is true that in the course of our opinion in thePezzulli case it was said that in a suit by an injured person, continued after his death by his personal representative, the plaintiff may recover the same damages as his intestate would have received if he had survived. We said, "The elements of permissible recovery in such a case are well established — pain and suffering until the time of death, and the economic value of the life as measured by the present worth of likely earnings during the period of life expectancy, the diminution in earning power being total because of the death." But it is important to remember that that instruction was not given to the jury in that case and that the verdict was based on net earnings and not "likely earnings during the period of life expectancy."
In the trial of an action by an injured person, the jury is instructed to find (inter alia) the loss of earning power if a claim on that account is made. The jury sees the plaintiff and knows and considers that he must maintain himself during the period of his life expectancy and, in fixing the amount of recovery, has or should have that fact in mind. The cost of maintaining himself comes out of his pocket; it is immaterial whether it is paid out of savings or is ultimately taken out of his verdict (which represents his earnings) because in either case he pays for his own maintenance; all that remains is his net earnings. But if such a plaintiff dies, and his action is brought to trial by his administrator, he does not maintain himself during the period of his life expectancy; his administrator should therefore not receive anything for his maintenance during that period; he should receive only the loss of earning power less cost of maintenance, the remainder to be reduced to present worth. So, too, when the suit is for the benefit of the estate of the *74
person under the Act of 1937, the personal representative should not be permitted to recover all that the deceased might have earned had he lived. He does not maintain himself. If he had lived, his earnings would have been diminished by his living expenses during the period of the expectancy. Certainly it would be giving more than compensation if his administrator now recovered a verdict which included living expenses never incurred and which could never have been properly enjoyed by him.5 This principle is recognized and applied in suits under the "death" statute allowing recovery by relatives where no suit has been brought in the lifetime of the injured person:Gaydos v. Domabyl,
In cases under the Survival Act of 1937, supra, the jury should be directed to ascertain what the earnings of the deceased person would have been during the period of his life expectancy6 and to deduct from them the probable cost of his maintenance as shown by the evidence and to reduce the amount to its present worth.7
This rule, making net earnings a basic element in suits for loss to the estate, is applied in many jurisdictions. InPitman v. Merriman,
The subject is considered in volume 4 of the Restatement, Torts, section 925, pages 638 to 642; in McCormick: Damages (1935) section 96,8 and in 16 American Jurisprudence, sections 194 and 195, page 131.
For the reasons stated we must sustain the assignment of error complaining of the use of gross earnings instead of net earnings as a basic element in reaching the verdict.
Both judgments are reversed and a new trial is awarded.
Dissenting Opinion
I dissent from the decision in this case for the following reasons:
1. The majority opinion characterizes the discussion inPezzulli, Administrator, v. D'Ambrosia,
2. If, under such circumstances, the rule there enunciated is technically to be regarded as dictum, the fact nevertheless remains that in the six years since that case was decided, not only has it been cited many times in our own reports and those of the federal courts, but we have sustained verdicts and judgments entered thereon in a number of subsequent cases in which the trial judge had followed the rule in regard to the measure of damages laid down in the Pezzulli case and in which alleged excessiveness of the verdict was directly in issue. Even if, therefore, it be true that the rule adopted in thePezzulli case was dictum, later cases have converted it into a firmly established principle, and undoubtedly scores, if not hundreds, of cases have been tried in the lower courts in accordance with it.
3. Of much greater importance, however, as far as the doctrine of stare decisis is concerned, is the fact that by the present decision we are overruling not only the rule of thePezzulli case and the cases which have followed it, but law which has been in force in Pennsylvania *78
for the past 97 years. The Survival Act of 1937 provides that "Executors or administrators shall have power . . . to commence and prosecute . . . all personal actions which the decedentwhom they represent might have commenced and prosecuted . . ." It is thus crystal clear — and it was so held not only in thePezzulli case but also in Stegner, Administrator, v. Fenton,
4. In the legal field of statutory construction it has frequently been asserted that if, after judicial interpretation has been given to a statute, the legislature does not amend the act, it must be assumed that the construction placed upon it by the court correctly represented the legislative understanding of the intended meaning of the statute and its desired effect. There have been three sessions of the legislature since the opinion in the Pezzulli case was handed down and no amendment has been enacted, so that the rule there established presumably *81 construed the Act of 1937 in accordance with the intent of the legislature.
5. The majority opinion cites cases from other jurisdictions apparently supporting the rule in regard to the measure of damages which the present decision seeks to introduce under our own Act of 1937. Those cases, however, are of no persuasive value whatever, and the same observation would be equally true of cases that might readily be cited from other jurisdictions which follow the Pezzulli rule. The reason is that the wording of the death and survival statutes varies greatly in the different jurisdictions and each decision concerning them must be weighed in connection with the phraseology of the statute which it interprets; some States have only a death statute and not a survival statute at all and others construe their survival statutes, by reason of their particular phrasing, as performing the function of death statutes by providing for damages to the relatives of the deceased; in such cases, of course, it is the net earnings of the deceased which alone could be enjoyed by the family. It is properly pointed out in appellee's brief that this applies especially to the Rhode Island, North Carolina and New Hampshire cases cited in the majority opinion. But our Pennsylvania Survival Act of 1937 is so clear in stating that an action instituted under it is the same action which the deceased might have commenced and prosecuted in his lifetime that there is no room left for the adoption of any rule of damages other than the one which, as already pointed out, has existed in Pennsylvania for close on to one hundred years.
6. The fact that the legislature enacted the Survival Statute of 1937 shows clearly that it did not consider that the Death Act of 1851 (section 19) furnished an adequate remedy in cases where a person was killed by the wilful act of negligence of a tortfeasor since it covered only that part of his earnings which he had been applying to the support of his family and did not provide for the loss which he himself suffered, namely, the *82
part of his earnings which he would have been able to spend for his own benefit had his life not been tortiously destroyed. But under the present decision the Survival Act will, in an overwhelming majority of cases, not allow of any such additional recovery at all, since it is only a small number of persons who can accumulate estates or, in other words, who enjoy an income in excess of their living expenses. It is not strange, for example, that in the case in the Federal court (before the decision in the Pezzulli case) in which an obviously intelligent and conscientious jury were instructed to return a verdict measured by the net earnings of the victim, they found against the defendant but awarded no damages to theplaintiff under that test; (Voelkel v. Bennett,
7. The rule laid down in the Pezzulli case has not worked unfairly or unsatisfactorily. Although in the six years since the rule was adopted a multitude of cases must have been tried in Pennsylvania involving its application this Court has had occasion in only a single instance to reduce a verdict rendered in accordance with it; (Vincent, Administrator, v.Philadelphia,
8. I believe it is wholly impractical, not to say impossible, for a jury to determine the likely living expenses of a person killed in an accident if the victim happens to be a child or a young man or woman, it being obvious that such expenses would necessarily depend on his habits and tastes as he advanced to maturer age, on the scale of living which he might adopt, on whether or not he would marry and have children, on whether *83 he would have other family obligations, etc. Thus there is now being introduced into the law a factor the application of which must necessarily be unscientific and arbitrary and which will serve only further to confuse the determination of verdicts in such cases.
9. I think that a rule of law is immoral and therefore indefensible which makes it more financially advantageous for a tortfeasor to kill than merely to injure an innocent victim. Under the rule established by the present decision, killing an ordinary wage-earner, especially if unmarried, would probably cost the tortfeasor an extremely small sum if anything, whereas only injuring such a person would result in a larger award of damages since in that event his living expenses would not, of course, be deductible from the amount of his recovery. Surely such a state of the law would justly merit the reproach that it makes the destruction of human life less costly to the wrongdoer than would have been the case if the victim of the accident had merely been maimed.
10. It seems to me that the present decision results from a confusion between a rule which is appropriate when damages are claimed for the death of another person and when they are claimed for one's own death. In the former event, as where parents claim for the death of a child, or a wife for the death of her husband, the rule, of course, should be, and is, that recovery can be had only out of net earnings; the question there is: what is the economic value of the life of the deceased to the claimant? But under the Survival Act of 1937 the recovery is not for the benefit of the deceased's relatives; since it is the same action which he himself could have brought in his lifetime the recovery is for the damages which he personally has sustained by being deprived of his life; the question then is: what is the economic value of the life of the deceased to himself? And while it is true that, if he had lived, he would have been obliged to use his earnings for eating, sleeping under shelter, *84 recreation and amusements, such outlays, though in one sense expenses, constitute in and of themselves the very functions of life itself, — the sole purpose, indeed, for which earnings are sought as the recompense of labor. If the argument be valid that living expenses should be deducted because the deceased infact escapes the necessity of paying them due to his enforced death, then logically no recovery at all ought to be allowed under the Survival Act of 1937 since the deceased would neverin fact be able to utilize even the surplus, if any, of his earnings over his expenditures which the present decision would grant to him.
11. Finally, the present decision seems to me to be undesirable on the basis of social considerations, because it drastically diminishes the amount of the recovery which might inure to the benefit of the family of an ordinary breadwinner and thereby works a much greater hardship on them than the application of the rule would entail in the case of persons fortunate enough to have incomes greatly in excess of their costs of living.
Because, therefore, of what I regard as compelling reasons — practical, logical, moral and social — as well as because the present decision involves the overthrowing of a century of established law, I must respectfully dissent both from it and from the opinion written to support it.
