Before MARIS, STALEY and HASTIE, Circuit Judges.
The fatal injury of a Philadelphia housewife in a traffic accident in that city is the basis of this suit wherein decedent's administratrix asserts claims under the Pennsylvania Wrongful Death Act and the Pennsylvania Survival Act.*fn1 The litigation is in federal court solely under diversity jurisdiction and it is clear and undisputed that all controverted issues are ruled by the law of Pennsylvania.
The decedent, Lillian Malamut, was fatally injured in a collision of an automobile driven by her husband with another automobile owned by the defendant partners Goldberg. The decedent was survived by her husband and two infant children. Their pecuniary loss, recoverable under the Wrongful Death Act, and the decedent's own loss, upon which her estate's recovery under the Survival Act is predicated, are the distinct bases of the claims which the administratrix of the decedent makes against the Goldbergs in this suit. The Goldbergs in turn brought the surviving husband, Meyer Malamut, into the litigation as a third party defendant.
Upon trial a jury verdict established the negligence of both the Goldbergs and the husband and awarded the administratrix $15,000 damages under the Wrongful Death Act and $5,000 under the Survival Act. Judgment for the plaintiff in these amounts was entered against the Goldbergs with judgment over for half of each award in favor of the Goldbergs against Meyer Malamut. Thereupon, the defendants moved to set aside the judgments and to reduce each award by one-third on the theory that one-third of each award to the administratrix represented the interest of the surviving husband who should be barred from any recovery because of his own negligence. The Goldbergs also moved for judgment n.o.v. on the theory that there had been no proof that their vehicle was being used in partnership business at the time of the accident. These motions were overruled and on appeal we are asked to review the issues they raised.
The first and principal question concerns the effect of the husband's negligence upon the allowable damages. In this regard it is important to see just how the matter was submitted to the jury.
First, the trial judge in his charge explained to the jury in some detail the two distinct claims in suit, saying:
"Where a death is caused by negligence, two actions may be brought after death: (1) a 'death action' which under statute is for the benefit of enumerated relatives, such as the husband and children in this case and such action is measured by the pecuniary loss sustained by them; and (2) a 'survival action,' a right which continues after death in the decedent's personal representative. The damages recovered in such action are measured by the pecuniary loss to decedent and therefore accrue to her estate."
This clear and correct summary statement was amplified in some detail. In addition, the court stated the distinct elements of damage as follows:
"This is what constitutes the total measure of loss:
"(a) The present value of the loss of services that would have been rendered by decedent but for this accident, to her family;
"(b) An award for conscious pain and suffering;
"(c) An award for medicines and medical bills occasioned by ...