Gibson v. Hallacher

• Decision Date: 26 August 1954
• Citation: 176 Pa.Super. 539,107 A.2d 449
• Parties: GIBSON v. HALLACHER.
• Court: Pennsylvania Superior Court

Page 449

107 A.2d 449

176 Pa.Super. 539

GIBSON v. HALLACHER.

Superior Court of Pennsylvania.

Aug. 26, 1954.

Application for Allocatur Denied Nov. 16, 1954.

William W. Hafer, York, for appellant.

Raymond R. Smith, Judson E. Ruch, John T. Miller and Luria & Still, York, for appellee.

Before RHODES, P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, Jj.

ROSS, Judge.

On January 18, 1950 Wayne C. Gibson was killed in an automobile collision while a passenger in an automobile driven by the defendant, Victor E. Hallacher, Jr. This action of trespass was instituted by Charles T. Gibson, administrator of the dead boy's estate. The case was tried before a jury, which returned a verdict for plaintiff for 'funeral expenses plus $1,000.00', a total of $1,387. The plaintiff's motion for a new trial on the ground of inadequacy of the verdict was granted by the court below, and defendant appealed to this Court.

The granting of a new trial for inadequacy of the verdict is a matter for the sound discretion of the court below, Fabel v. Hazlett, 157 Pa. Super. 416, 43 A.2d 373, and in the absence of a gross abuse of such discretion, we will not reverse. Olson v. Swain, 163 Pa. Super. 101, 60 A.2d 548; Barker v. Reedy, 167 Pa.Super. 222, 74 A.2d 533; Goodman & Theise, Inc. v. Scranton Spring-Brook Water Service Co., 352 Pa. 488, 489, 43 A.2d 111; Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295. Consequently, the question before us is not whether in our opinion the verdict of the jury was inadequate, but solely whether the trial court committed a gross abuse of discretion in granting a new trial because in its opinion it was inadequate. When a trial court grants a new trial on the ground of inadequacy of verdict it does so in the interest of justice. That is the only conclusion to be drawn, whether so stated or not. Moreover, in this case it is stated in the opinion of the lower court: '* * * in order to see that justice is done the court en banc feels that a new trial should be awarded.'

The negligence of the defendant is admitted, and there is no suggestion that the deceased did anything that contributed to the accident or failed to do anything that might have prevented it. At the time of his death he was 18 years of age. His first job, when he was 16 years of age, was in a silk mill, where he earned $45 a week. Two months before his death he changed his occupation to that of an apprentice with a glass-cutting company at an hourly rate of 60 cents, which a few days before his death was increased to 63 cents. He left the silk concern to go with the glass company because he felt that he would have better chances for advancement and 'make more money in the end'. His general condition of health was good and he had a life expectancy of 43.53 years. Certainly on the record before us we cannot find that there was a 'gross abuse of discretion' by the court below in granting a new trial on the ground of inadequacy of the verdict.

Order affirmed.

WOODSIDE, J., files dissenting opinion.

HIRT, J., absent.

WOODSIDE, Judge (dissenting).

In my opinion neither courts nor counsel gave sufficient attention to the measure of damages applicable to this case. Had they done so I believe the lower court would not have granted a new trial, nor would this court have affirmed.

Although no mention was made in the trial, the briefs, or the opinions as to what damages were under the so-called 'Death by Wrongful Act Statute' and what under the 'survival Statute', nevertheless, from the record, including the plaintiff's complaint, it is clear that the $1,000 was awarded under the 'Survival Statute.' ¹ The $378 award for funeral expenses is not our concern in this appeal.

It was not until 1937 that we had a constitutional Survival Act in Pennsylvania under which an action such as this could be brought, ² and the measure of the damages which can be recovered under it is still not well defined.

The Supreme Court first suggested that the measure of damages was 'the present worth of his (deceased's) loss of earning capacity during his life expectancy.' Pezzulli v. D'Ambrosia, 1942, 344 Pa. 643, 648, 26 A.2d 659, 661.

But in Murray v. Philadelphia Transportation Co., 1948, 359 Pa. 69, 74, 58 A.2d 323, 325 the court held that this was not the correct measure of damages, and stated the rule as follows: '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 worth7.' Footnote 6 said allowance should be made for the fact 'that earning power, towards the end of the average life becomes less and less,' and footnote 7 was 'At simple interest at the legal rate (citing)'.

In the Murray case, 359 Pa. at page 75, 58 A.2d at page 326 the court cited, apparently with approval, a North Carolina case where a verdict of $1,000 was sustained and a Florida case where the verdict was reduced from $15,000 to $2,000. ³

Justice Horace Stern (now Chief Justice) dissented in the Murray case pointing out, 359 Pa. at page 82, 58 A.2d at page 329 that 'under the present decision the Survival Act will, in an overwhelming majority of cases, not allow of any such additinal 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 seems that this court did not agree with the observation of Chief Justice Stern for within a few months it affirmed the granting of a new trial where the verdict in a survival action was $1. Olson v. Swain, 1948, 163 Pa. Super. 101, 103, 60 A.2d 548. Of course, there are cases where the evidence warrants granting a new trial even under the rule adopted in the murray case, and since followed in Ferne v. Chadderton, 1949, 363 Pa. 191, 197, 69 A.2d 104, 108.

In the latter case the court said: 'Under the Survival Statute * * * the administratrix was entitled to recover for the loss of decedent's earnings from the time of the accident until the date of his death, and compensation for his pain and suffering during that period. Recovery may also be had for the present worth of his likely earnings during the period of his life expectancy, but diminished by the amount of the provisin he would have made for his wife and children as above stated, thus avoiding duplication, (citing) and diminished also by the probable cost of his own maintenance during the time he would likely have lived but for the accident (citing).'

In the case before us the deceased was killed almost instantly so the first two elements of damages mentioned above, to wit: earnings between the injury and death, and pain and suffering were not involved in the case. The trial judge's charge on the measure of damages to be allowed in this case was not questioned and appears to be correct. Among other things he properly directed the jury 'to deduct (from what deceased would have earned) what it would have cost him to have maintained himself during the same period of time.'

Although only 18 years of age the deceased was not contributing to his parents so there was no recovery under the Wrongful Death Statute for loss of any such payments to them.

The deceased had been a healthy young man whose tragic death undoubtedly caused a loss to his devoted parents which no amount of damages could ever compensate. But the law does not permit compensation for this grief.

Furthermore, the purpose of the legislation allowing this action is to provide compensation, not punishment. Murray v. Philadelphia Transportation Co., supra.

With these rules in mind, an examination of the record upon which we must rely to base our estimate of his future earnings and the expenses of his maintenance, gives little evidence that the deceased would have been likely to have had any substantial earnings in excess of living expenses. In fact it suggests he would have been one of the many who finds it difficult to earn enough to maintain himself.

The deceased stopped him formal education when he was 16 years old and a sophomore in high school. He was working in a glass cutting factory earning, according to the complaint $30 per week, and according to the evidence an average of $29.13 per week gross, not $40 as stated in the opinion of the trial court. He was employed in the shipping department at 63cents an hour, and when working 40 hours a week without overtime was grossing only $25.20 per week or approximately $1,300 a year. He was not an apprentice glass cutter, and his expectations for advancement were limited in the evidence to an increase from 60cents to 63cents per hour, and a statement by his parents that he took the job with the hope of becoming a glass cutter. His life expectancy was 43 1/2 years according to the American Table of Mortality which was admitted into evidence by agreement.

Under such circumstances what would he have been likely to accumulate? Chief Justice Stern suggests probably nothing for one in such circumstances and the experience of all of us should leave no doubt that such conclusion is correct. Dissent in Murray v. Philadelphia Transportation Co., supra.

If by 'accumulate' is meant what would have been his estate at his death had he lived, say 43 1/2 years more, it is much easier to establish that the verdict was excessive than that it was inadequate. For example $1,000 accumulating at simple interest at the legal rate for such period of time would be over $3,600. How many men working for an hourly wage, lacking formal education, accumulate an estate of that amount from their savings out of their wages? Some will, but most will not. Yet when a jury allows a sum larger than most men in similar circumstances would accumulate, we permit the lower court to say it is so grossly inadequate that it must have been 'based...