Brodie v. Philadelphia Transp. Co.
| Decision Date | 07 October 1964 |
| Citation | 415 Pa. 296,203 A.2d 657 |
| Parties | Sylvia BRODIE and Maurice Brodie v. PHILADELPHIA TRANSPORTATION COMPANY, Defendant, and Sylvia Waxler, Additional Defendant (two cases). Appeals of PHILADELPHIA TRANSPORTATION COMPANY. Sylvia WAXLER and Norman Waxler v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant (two cases). |
| Court | Pennsylvania Supreme Court |
James Conwell Welsh, Philadelphia, for appellant.
Marvin R. Halbert, James E. Beasley, Sheldon L Albert, Boris Shapiro, Halbert & Kanter, Philadelphia, for appellees Sylvia and Maurice Brodie.
Arthur M. Harrison, M. Stuart Goldin, Walter Lazaroff, Bernstein Bernstein, Levy & Harrison, Philadelphia, for appellees Sylvia and Norman Waxler.
Before BELL, C. J., and COHEN EAGEN, O'BRIEN and ROBERTS JJ.
On January 23, 1960, at a street intersection in the City of Philadelphia, a violent collision occurred between a trolley car, owned and operated by the Philadelphia Transportation Company (Company), and an automobile operated by Sylvia Waxler, in which Sylvia Brodie was a guest passenger.
Sylvia Waxler, alleging that the collision and resulting injury were due to the negligent operation of the trolley car, sued Company for damages, in which action her husband, Norman, was also named as a party plaintiff.
Sylvia Brodie and her husband, Maurice, instituted a similar action against Company. In this suit, Sylvia Waxler was later joined as an additional defendant. Sylvia Brodie died on April 2, 1960, from injuries received in the accident, and proper substitution of her personal representative, as party plaintiff, was made of record.
The cases were consolidated for trial, at which verdicts were returned against Company alone in favor of all plaintiffs in the following amounts: Estate of Sylvia Brodie, $115,000; Maurice Brodie, $20,000; Sylvia Waxler, $45,000; Norman Waxler, $20,000. Post trial motions were dismissed by the court en banc below, and from judgments entered on the verdicts appeals were filed in this Court.
Appellant first contends that Sylvia Waxler, under her own testimony, was guilty of contributory negligence as a matter of law, and it is, therefore, entitled to judgment notwithstanding the verdict in the Waxler action. This question need not detain us since an examination of the record is persuasive that the question was for the jury's determination. However, we are convinced that trial error requires the grant of a new trial.
A police officer connected with the Accident Investigation Division was called as a witness. He did not see the occurrence and arrived at the scene approximately two hours later. He testified to what he observed as to physical markings on the roadway in the area of the collision. Over objection, Waxlers' counsel was then permitted on cross-examination to elicit from the witness an opinion that at the time of the occurrence, the trolley car was traveling at a rate of speed of thirty-five miles per hour, was not under control, and traveling too fast for conditions. Aside from the fact that the cross-examination was beyond the scope of the matter testified to on direct examination, the opinion expressed was grossly speculative and an invasion of the jury's exclusive prerogative. See, Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963). While this improper evidence resulted from examination by Waxlers' counsel only, it tainted the verdict in all actions and could well have been the basic factor influencing the jury's determination of the liability question. It was sufficiently prejudicial to warrant a retrial.
Since the actions must be retried, another important issue requires discussion.
Upon the date of the accident, Sylvia Brodie, 42 years of age, was on her way to work at the Albert Einstein Medical Center, where she was employed as a practical nurse.
The directress of nurses at the Medical Center testified that Mrs. Brodie began her employment with the institution as a parttime employee in the year 1954, earning $1.50 an hour; that at the time of the accident, she was employed full time, receiving a salary of $304.50 per month; that increases in the pay scales of registered nurses is part of the center's policy, had been followed in previous years and could reasonably be expected to continue in the future. The witness detailed these increments, which indicated that if Mrs. Brodie had lived and continued in her employment until July 1962, the date of the trial, her salary would be $355.67 per month, and in July 1970, would amount to $458.83 per month. She further testified that there was a continued evaluation of performance by the hospital of one engaged in the work performed by Mrs. Brodie, and that the subject's ratings were excellent. Finally, this witness stated that there was no compulsory retirement age for one engaged in this class of work.
The plaintiffs then offered in evidence the testimony of an actuarial expert. He testified that Mrs. Brodie had a life expectancy of 33.28 years, based on accepted mortality tables; he explained 'present worth' and illustrated how it should be determined in the instant case, assuming the decedent worked her full life expectancy. A blackboard was used in these illustrations and the calculations were first done on the basis that the decedent's salary at the time of the accident would remain constant, and secondly, on the basis that she would receive the expected increases in her salary as testified to by the directress of nurses. In making these computations, the expert witness used both a six and four per cent interest rate. To permit this constituted error. In Pennsylvania in reducing future damages to their present worth, the interest must be computed simply and at the lawful rate of six per cent only: Gregorius v. Safeway S. Scaffolds Co., 409 Pa. 578, 187 A.2d 646 (1963). 415 Pa. 301 The question also necessarily arises: Should the illustrations of the present worth calculations have been admitted in evidence at all?
Before the year 1926, tables showing the present worth of a dollar payable at a fixed date in the future were admissible evidence in proper cases in Pennsylvania courts. See Seeherman v. Wilkes-Barre Co., 255 Pa. 11, 99 A. 174 (1916), and Faber v. Gimbel Brothers, 264 Pa. 1, 107 A. 222 (1919). However, in McCaffrey v. Schwartz, 285 Pa. 561, 132 A. 810 (1926), this Court reexamined the question and ruled out their use. It expressed the fear the since such calculations did not include the consideration of several factors,...
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