September 22, 1941, to the time of the trial, February 18, 1943, a period of 17 months, and may be cured by a reduction of the verdict in an amount sufficient to overcome the maximum amount the jury may have awarded under this charge.
In Fougeray v. Pflieger, 314 Pa. 65, 170 A. 257, 258, citing Brown v. White, supra, where the value of a physician's services had not been proved, Mr. Justice Schaffer said: "Under the circumstances we conclude that it is not necessary to award a new trial, but that there must be a further reduction of $540 in the judgment * * *."
Considering the amount of the verdict to compensate him for the serious and most likely permanent injuries, for his pain and suffering, for his required and extensive medical and hospital treatment, for his loss of future earning power, and for loss of his salary of $42 a month plus room, board and laundry, I cannot believe that the jury allowed him in excess of $100 per month for the value of his room, board and laundry. A reduction of at least $1,700 in the verdict for these items should certainly cure any error that may have been committed in this respect.
With respect to loss of earning capacity as distinguished from loss of earnings, past earnings are only one of the factors to be taken into consideration, and other factors are a plaintiff's age, condition, station in life, occupation, health and surroundings, Wolf v. C. Schmidt & Sons Brewing Co., 236 Pa. 240, 84 A. 778, and may be determined even in the absence of testimony as to plaintiff's earnings prior to the accident, Riddel v. Lyon, 124 Wash. 146, 213 P. 487, 37 A.L.R. 486.
The defendant's seventh reason for a new trial urges that the court "erred in submitting to the jury the claim in behalf of the plaintiff for charges for nursing, there being no evidence offered by the plaintiff as to the reasonable value of such services alleged to have been rendered in behalf of the plaintiff by his sister, Mrs. Mary Carr." Mrs. Carr testified as to the dates she rendered nursing services to the plaintiff and described the nature of her services. The witness testified that she kept a record of every day she lost at the mill in which she worked and had made a computation of her loss of wages. Plaintiff's attorney asked her what her wages were at the knitting mill, to which defendant's counsel objected. The court sustained the objection and said he would allow her to testify what her services were worth to plaintiff. The following then took place:
"Q. How much have you charged your brother, the plaintiff in this case, for the nursing that you gave him during all that time?
"Mr. Henry: I will have to object to that.
"The Court: Objection overruled. I will allow her to answer that.
"The Witness: $610.00."
Further questioning elicited the information that this sum included the amount for nursing and the money she expended for the plaintiff for medicine and for taxicabs which it was necessary for the plaintiff to employ to go to the hospital from time to time for treatment. This testimony showed that her total charge for nursing was $567. Later, plaintiff offered in evidence a memorandum showing that she had expended $35 and that she made a claim for nursing of $567. Defense counsel then objected and said that he had no objection to the $35 expenses. The following took place:
"By The Court:
"Q. And the $567 for nursing, that is what you feel is a fair amount for the care and nursing services you rendered to him. A. Your honor, I didn't put half of what my services was to him.
"The Court: You don't need to explain to me. Just answer my question.
"The Witness: Yes, I do, I really do.
"The Court: All right."
The objection was overruled and the computation admitted.
In my charge to the jury on this phase I said: "She had been employed at a mill prior to the accident, but since that she had to stop work, and was at home, and furnished board and lodging to the plaintiff, and made no charge for that, but she has submitted a charge for her nursing and the care of the plaintiff at the time he was at her home, and also for expenses that she was forced to pay, such as taxicab fees, and whatever other expenses may appear in the bill, all of which she said was due to the plaintiff's injuries. The bill she submitted was $35 for expenses that she paid and $567 for nursing, or a total of $602.00."
In view of her testimony that the reasonable value of her services in nursing plaintiff was considerably more than claimed by her on the memorandum of computation admitted into evidence, I do not think defendant suffered any prejudice. Defendant contends the memorandum was objectionable as an exhibit because it was based on her loss of wages rather than on her services as a nurse. The memorandum at the head of the column carries these words, "Cost of care per week", and then at each weekly figure carries the words, "Lost of work". Granting a possibility of prejudice by this ruling, the error could not have affected the verdict in more than the amount of $567 and can therefore be cured by a reduction of the verdict to this extent.
I think the trial was fair and the verdict of the jury amply justified on the evidence. For the reasons mentioned, however, and to remove every possible doubt of prejudice that the defendant may have suffered I shall direct the verdict to be reduced from $12,500 to $9,500.
Upon the plaintiff filing a remittitur of so much of the verdict as is in excess of $9,500, the defendant's motions for a new trial and to have the verdict and judgment set aside, will be denied; otherwise the motion for a new trial will be granted.