he or his estate may have incurred for hospital, medical and funeral expenses, provided, of course, he was the one who was legally liable for such expenses. The difficulty arises when we come to consider what, if anything, may be recovered for the value of the deceased's life based upon his normal expectancy -- an item closely related to loss of earning power under one view, and an absolute valuation of the life itself, unconnected with earnings or possible accumulations, under another.
Three Common Pleas decisions (Gannon v. Lawler, supra; Findeisen v. Friedman, 35 Pa. Dist. & Co. R. 523; and Glaesser v. Evans, 36 Pa. Dist. & Co. R. 68) limit the damages recoverable for the loss of the life to actual loss of time and earning power for the fixed period between the injury and the death. This is done mainly because of the danger of a duplication of damages which might arise if the administrator should be allowed to recover anything for loss of earnings or earning power for the period after the death. Obviously, it was not intended, by the survival statutes, to take away any rights granted to the relatives by the death acts, and so, in this case, the parents can recover for loss of the boy's probable earnings, at least until he reaches the age of 21. If, in addition to this, there should be added a recovery by the administrator of the economic value of the life, the defendant, whose liability is for compensatory damages only, might be paying a verdict which included much more than that. I thought that I was avoiding this result by limiting the administrator's recovery to the pecuniary value of the boy's life from 21 years on, because the parents do not ordinarily have an expectation of support after the child comes of age, but after carefully reconsidering the whole matter, I am inclined to think that I was wrong and that the rule of Gannon v. Lawler is correct. If the deceased had not been a minor and there had been a widow who was suing in her own right, instead of the parents, duplication of damages could not be avoided without adopting the rule of the Gannon case without modification, because the widow's right of recovery extends to damages for the decedent's entire life expectancy. It is not necessary, however, to make a definite ruling upon this point, because, if there was error, it allowed the jury to give the administrator more than he may rightly be entitled to. Naturally, in view of the verdict, the defendant is not complaining of the instructions.
The plaintiff administrator's contention, however, goes much farther than the instructions. It is that the Court should have instructed the jury to find the absolute value of the life lost -- that is to fix a figure which represents what the decedent's life was worth to him, regardless of possible earnings or accumulations or of any of the purely economic elements to which I limited the jury in the present case. He concedes that such a measure is difficult to apply, but says that it is by no means preposterous, since damages for pain and suffering and for loss of reputation are awarded pretty largely at the jury's guess without limitation by pecuniary standards or economic rules.
The one decision which seems to give substance to the plaintiff's contention is Pennsylvania R. Co. v. McCloskey's Administrator, 23 Pa. 526. In that case the court below suggested to the jury that in estimating the damages "they might compute them by the probable accumulations of a man of such age, habits, health, and pursuits, as the deceased, during what would probably have been his lifetime; and then added: 'I think this would be a fair measure of damages in this case; but if the jury can find a better rule than the one suggested, they are at liberty to adopt it.'" It was an action for a negligent killing, brought by the administrator of the decedent, childless and unmarried, who had brought no action during his lifetime. With regard to the effect of the decision, I can only point out the following considerations:
First, it was a suit which arose during the brief period from 1851 to 1855 when the "death action" clause of Sec. 19 of the former Act gave a right of recovery to the widow only, and the survival clause came into effect only when there was no widow. Thus, so far as the survival of the cause of action was concerned (that is, where the decedent had brought no action during his lifetime), there could be no possible danger of a duplication of damages by permitting the jury to put some kind of value on the life itself. The parents or children had no right of action, and if there had been a widow the administrator would have been barred. Had the decedent brought an action in his lifetime and died leaving a widow, the action being continued by the administrator under Sec. 18 of the Act, the Court might have had the question of possible duplication presented to it. Whether this would have affected its views it is, of course, not possible to say. At any rate, the entire scheme of the legislation upon this point has been revised, and the danger of the duplication of damages is so clear under the present law that an intention to avoid it may well be found, where it may not have appeared in the statutory law of the 1850's.
Second, the decision is a very old one, and my attention has been called to no modern decision which supports what appears to be the rule laid down by it -- a rule which, if I understand it correctly, requires the jury to put a value upon a human life, divorced from all pecuniary elements. It will be noted that the Supreme Court in the McCloskey case expressly disapproved of the part of the judge's charge in which he told the jury that they might consider the probable accumulations of the decedent. Of course, probable accumulations are not quite the same as the economic value of the life, because there might be some question raised in the jury's mind as to the thrift and saving habits of the decedent, but there is not very much difference. Apparently the Supreme Court felt that an instruction that "if the jury can find a better rule than the one suggested, they are at liberty to adopt it" saved the charge. It does not seem possible that the Court today would support a charge to the jury which told them to find any value for a human life which they chose to find, upon any basis which they might choose to adopt. Yet that is really the effect of the opinion of the Court in the McCloskey case.
Until the Supreme Court of the State has spoken and has laid down a rule applicable to the now existing statutory law of Pennsylvania upon the question, I am not prepared to follow the McCloskey decision and prefer to adopt the reasoning of the Common Pleas cases under the more recent statutes. I therefore hold that the instructions given to the jury relating to the measure of damages in the suit by the administrator, if erroneous, erred in favor of the plaintiff and consequently do not furnish any reason for a new trial.
Under the rule laid down in Gannon v. Lawler, the answer of the jury that no damages were awarded to the administrator was almost necessary. The death was practically instantaneous. There was no loss of earnings and the expenses were allowed the parents, who paid them.
The motion for a new trial is denied.
Rule 49 (b), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that "When the answers [to interrogatories] are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, nowithstanding the general verdict * * *." In this case a verdict for the plaintiff administrator would clearly be inconsistent with the answer to the interrogatory to the effect that no damages were awarded to him. The Court therefore directs that judgment be entered in favor of the plaintiff parents in the amount of $1,710, and in favor of the defendant as against the plaintiff administrator.
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