Murray v. Philadelphia Transportation Co.

Opinion by Mr. Justice Linn, 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 northbound 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., 299 Pa. 79, 149 A. 104; Quattrocchi v. Pittsburgh Ry. Co., 309 Pa. 377,164 A. 59. 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 endnre 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/S Amerika, 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 18 3 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,, 344 Pa. 643, 26 A. 2d 659, also a suit for an infant’s death, the trial judge had charged that “the measure of recovery was the present worth of Charles’ loss of earnings during his life expectancy, after deducting the cost of maintaining himself.” In other words, his net earnings were considered the basic element. The court in banc granted a new trial on the ground that the restriction to net earnings was erroneous, that the proper measure of damages was “the present worth of his probable future accumulations during his life expectancy.” 4 It will be observed that the jury had been instructed to find what the probable earnings of the child would have been (we assume after 21) and, after deducting the cost of maintaining himself, to allow the difference reduced to its present worth. We reversed the order granting a new trial and directed judgment for the plaintiff on the verdict which had been reached by allowing the present worth of decedent’s net earnings. *73 The instruction given to the jury in the Pemlli 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 the Pezzulli 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 noiv recovered a verdict which included living expenses never incurred and Avhich 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, 301 Pa. 523, 530, 152 A. 549; Vescio v. Pennsylvania Electric Co., 336 Pa. 502, 9 A. 2d 546; Siidekum, Admr. v. Animal Rescue League, 353 Pa. 408, 45 A. 2d 59. 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 6 and to deduct from them the probable cost of his maintenance as shown by the evidence and to reduce the amount to its present Avorth. 7 This rule, making net earnings a basic element in suits for loss to the estate, is applied in many jurisdictions. In Pitman v. Merriman, 80 N. H. 295, 117 A. 18 (1922) the statute pro Added that “when the death of the person is caused by wrongful act . . . which, had death not ensued, Avould entitle the person injured to recover *75 damages therefor, then on the death of such person his executor . . . may . . . recover damages for the injury to the person and the estate of such person caused by such wrongful act or neglect and consequent death . . The charge to the jury was interpreted as an instruction to deduct from the earning capacity “what it would cost him to live.” See also Morrell v. Gobeil, 84 N. H. 150, 147 A. 413, 414. McAdory v. Louisville & Nashville Ry. Co., 94 Ala. 272, 10 So. 507, was an action by a personal representative for the death of a 20 year old boy; the verdict of $9,395 was held excessive. It was said the jury should have been instructed to find a “sum which with legal interest during the period of the expectancy of life added would produce at its expiration a sum equal to the amount of the net earnings during the same period.” Russell v. Windsor Steamboat Co., 126 N. C. 961, 36 S.E. 191, was an action by the administrator of a child aged 5 months. A verdict of $1,000 was sustained. The charge was that “the measure of damages was the present value of the net pecuniary worth of the deceased to be acertained by deducting the cost of his own living and expenditures from the gross income based upon his life expectancy.” See also Rea v. Simowitz, 226 N. C. 379, 38 S.E. 2d 194. Chesapeake & Ohio Ry. v. Lang’s Administrator, 100 Ky. 221, 38 S.W. 503, was an action by a personal representative for the death of an 18 year old boy; the net earnings rule was applied, the Court saying the jury should “in estimating the loss to the estate, take into Consideration what would have been the necessary and economical living expenses of the deceased had he not been killed.” Florida East Coast Ry. Co. v. Hayes, 67 Fla. 101, 64 So. 504 (1914) was an action by the administrator of a child. The Court said: “In effect, the court instructed the jury if they find for the plaintiff to award such sum as the evidence shows the decedent would probably have accumulated during his life expectancy from his probable earnings after he would have reached the age of 21 years, reduced to a money value, *76 and its present worth to be given as damages.” In this ease the minor was 13 years and 5 months old. The verdict was $15,000. The court applied present worth and life expectancy tables to the verdict to show that it was excessive and reduced the verdict to $2,000. See also Tully v. P. W. & B. R. R. Co., 3 Pen 455 (Del.) 50 Atl. 95; Florida, etc. R. R. Co. v. Sullivan, 120 Fed. 799 (U.S.C.A. 5th Ct.); Carlson v. Oregon Short Line R. R. Co., 21 Ore. 450, 28 Pac. 497; Louisville etc. R. R. v. Garnett, 129 Miss. 795, 93 So. 241. The subject is considered in volume 4 of the Restatement, Torts, section 925, pages 638 to 642; in McCormick: Damages (1935) section 96, 8 **oiland 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. Footnotes [1] It was so held in Taylor Estate, 179 Pa. 254, 36 A. 230. [2] 44 Harvard Law Review 980 (1931). [3] This section was re-enacted by the Act of June 7, 1917, P. L. 447, section 35(a), 20 PS 771. [4] For present purposes it is unnecessary to consider what was intended by “future accumulations.” [5] In the Restatement, Torts, in the discussion following section 925, it is said: “In other States the damages are based upon the total probable earnings of the deceased reduced to present value. This is the same measure of damages as that which could have been recovered by him had he been permanently disabled but not killed and is more than compensatory since, had he remained alive, he would have had to provide for his own living expenses.” [6] Allowing for the fact that earning power, towards the end of the average life, becomes less and less: McCaffrey v. Schwarts, 285 Pa. 561, 571, 132 A. 810. [7] At simple interest at the legal rate: Windle v. Davis, 275 Pa. 23, 29, 118 A. 503. [8] At page 342 McCormick says: “A third view is that the present worth of the probable gross earnings which the deceased would have made should be taken as the basis of recovery, without deduction for any expenses whatever. Since the premature death has not only cut oil the prospective earnings of the deceased, but has cut off his living expenses also, it is difficult to justify the award of gross earnings as a measure of the loss caused by the death, and consequently this view is not widely adopted.”