relating to liability in favor of the plaintiff.
The suggestion of Mr. Freedman, the plaintiff's attorney, is explained by the fact that the jury had earlier returned with a verdict for the plaintiff awarding damages to the child only, under some sort of installment arrangement which, without objection from either party, they were instructed they could not do. This, of course, does not appear in the transcript of the record, but I believe I am correct in saying that counsel on both sides agree that it did occur.
I am fully aware of the distinction between special verdicts and answers to interrogatories, and I am not suggesting that, had the jury merely returned written answers to the interrogatories submitted without more, judgment could have been entered for the plaintiff. The interrogatories were not submitted as the basis for a special verdict.On the contrary, I directed the jury to return a general verdict -- "either for the defendants or for the plaintiff in an amount which you will fix in case you find for the plaintiff" -- and submitted the interrogatories in order that the Court upon a motion for a new trial might be advised as to how the jury arrived at their verdict, what issues were found in favor of the plaintiff and what in favor of the defendant -- all to the end that if it should appear that error had been committed upon a point not necessary to the general verdict, a new trial would be unnecessary.
Leaving out of consideration the earlier and unrecorded verdict and confining the matter to what appears on the record, the jury specifically answered the Clerk's question, "Have you agreed upon your verdict?", "Yes, sir." This certainly indicates that they intended to find in favor of one or the other party, and it would be absurd in view of the answers to the interrogatories to suggest that a verdict for the defendants was intended.
(c) The verdict in this case was for $8,000. Under all the circumstances, a considerably larger verdict could have been sustained, but I am unable to find that the amount returned is so inadequate as to require another trial upon the issue of damages. The plaintiff's argument largely comes down to a mathematical calculation, the factors of which are the earning power of the deceased and his life expectancy according to mortality tables. However, as the Supreme Court said in Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 7 S. Ct. 1, 2, 30 L. Ed. 257, "* * * it has never been held that the rules to be derived from such tables or computations must be the absolute guides of the judgment and the conscience of the jury." The plaintiff does not contend that the Court's charge in the submission of the question to the jury was erroneous or inadequate.
In submitting the issue of damages the Court told the jury to apportion the verdict between the widow and the child. It has been held in many cases that this is not error. However, after carefully considering the question I am satisfied that it is unnecessary, and the better practice would be to instruct the jury to bring in the verdict in a single lump sum, leaving the distribution or administration of the fund for the appropriate state court. It is significant that in enacting the Jones Act, Congress omitted the provision of the English Act upon which it was modelled, relating to apportionment of the verdict. As the Court said in Sabine Towing Co. v. Brennan, 5 Cir., 85 F.2d 478, 482: "In the case of a recovery for the benefit of a widow and her minor children, there is hardly any need to apportion the amount between them. Naturally, the minor children will receive full benefit from any award made to the mother." About the only thing apportionment seems to accomplish is to give dissatisfied parties some additional grounds for attack.
From the defendants' point of view, of course, the question of apportionment is wholly immaterial. The case of Pittsburgh, Cincinnati, etc., R. Co. v. Collard's Adm'r, 170 Ky. 239, 185 S.W. 1108, L.R.A.1918E, 273, cited by the defendant, is not quite in point. In that case the apportionment was between the deceased's father who received $6,500, and his mother who received $3,500, out of a $10,000 verdict. The Court held that the amount awarded to the father was excessive and concluded from this that the entire verdict was excessive. The Court apparently assumed that the jury determined the loss to the father and the loss to the mother and added the two together to make the verdict. This would have been the opposite of the proper method, and I greatly doubt the soundness of the Court's reasoning.
However, even so, it would not help the defendants much in their argument that the allowance to the child was excessive. In Philadelphia & R. Ry. Co. v. Briscoe, 3 Cir., 279 F. 680, (a death case), the Circuit Court of Appeals for this Circuit sustained a verdict of $15,000 which was apportioned $3,000 to the widow and $4,000 to each of three children. The children were age 6, 10 and 12 years respectively. In view of this decision, it can hardly be said that the award of $6,500 to the three-year old child in the present case is greatly out of the way.
From the plaintiff's point of view it is to be noted that the only question really before the Court is whether the lump sum verdict of $8,000 is inadequate. The widow and child are not parties here. As I have stated, my own view is that the apportionment is not required by the Act, and hence that part of the verdict may be treated as surplusage. As to what effect the apportionment part of the verdict would have in finally settling, as between the widow and child, the rights to the fund, it is not necessary to express any opinion, nor do I.
The three motions before the Court are all denied, and judgment may be entered upon the verdict in the amount of $8,000.
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