Jenkins v. Pennsylvania R. Co.

• Citation: 220 Pa.Super. 455,289 A.2d 166
• Parties: Addie F. JENKINS, Administratrix of the Estate of Tyrone Jenkins, Deceased, Appellee, v. The PENNSYLVANIA RAILROAD COMPANY, Appellant.
• Decision Date: 24 March 1972
• Court: Superior Court of Pennsylvania

Page 166

289 A.2d 166

220 Pa.Super. 455

Addie F. JENKINS, Administratrix of the Estate of Tyrone

Jenkins, Deceased, Appellee, v. The PENNSYLVANIA RAILROAD COMPANY, Appellant.

Superior Court of Pennsylvania.

March 24, 1972.

Petition for Allowance of Appeal Denied Nov. 1, 1972.

Richard L. Goerwitz, Jr., Philadelphia, for appellant.

James E. Beasley, Philadelphia, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and CERCONE, JJ.

SPAULDING, Judge:

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 of the Court of Common Pleas of Philadelphia County. The appellee is the administratrix of her deceased son's estate. Motions for a new trial and to amend judgment were denied by a divided court en banc, consisting of the trial judge, Judge Stanley M. Greenberg and Judge James R. Cavanaugh who dissented. Judgment was entered upon the verdict and this appeal followed.

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 7 1/2 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, 325 (1948), holding:

'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 expectancy 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.'

The opinion further indicates that reduction to present worth is accomplished by using 'simple interest at the legal rate. Windle v. Davis, 275 Pa. 23, 29, 118 A. 503.' Murray, supra, 359 Pa. at n. 7, 58 A.2d at 325 n. 7. This rule has been applied with approval. Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 187 A.2d 646 (1963); Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964).

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. ¹ In order to assist the jury in determining the present value of future damages determined to be due, expert testimony including the use of accepted actuarial tables is now permitted. Brodie, supra, 415 Pa. at 301--303, ² 203 A.2d 657. In the instant case appellant produced the only witness (an actuary) to testify on the application of the 'present worth rule.'

'He testified as to two concepts of the reduction of a sum of money to present worth: (1) as to the amount of money to be invested in the bank now which untouched would produce a specific sum at the end of a set period of years, and (2) the reduction to present worth of a sum to be paid continuously throughout a period of years.' (R. 270a)

Despite this testimony the jury's confusion remained and they requested additional instructions on the doctrine of present worth from the trial judge after they had already deliberated for some time. At that time, he submitted to the jury the following interrogatories; their answers thereto being the dollar amounts indicated:

"Interrogatories to the Jury"

(R. 229a)

                           IN THE EVENT THAT YOUR FINDING IS FOR THE
                                 PLAINTIFF 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) ............................... $140,800
                        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 .................. $ 39,000 *
                        Pain and suffering ................... $  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
                        Deduct therefrom the probable
                        cost of his maintenance by his
                        parents

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