limited as it was to several years in the future and considering the salaries as mentioned by the witnesses, it is believed that such evidence was proper for the consideration of the jury in awarding damages.
From the viewpoint of the size of the verdicts, considering the decedent's earning ability, his health and energetic determination to succeed and his life expectancy, the verdicts are far from being excessive. They are reasonable.
One further matter requires comment. During the course of the trial, defendant at side bar indicated that he proposed to show that the widow of decedent, Mary U. Johns, who was 28 years of age at the time of trial, was engaged to remarry. The ruling of the court was that the widow was entitled to have her damages considered at the moment of death of her husband. However, during the summation by defendant's counsel the following occurred:
'Mr. Power. * * * As to what this lady is entitled to recover in the other case for herself, I have no quarrel with that at all, except to remember that she is entitled to her reasonable expectancy of pecuniary benefit in the continued life of her husband. In considering that, this young lady -- you have seen her, I have seen her -- she is now twenty-eight years of age, she has no children. I leave it to you, particularly you gentlemen, as to whether or not she is an attractive person, what in the future are her chances of being married again --
'Mr. Bloom. Just a minute, Your Honor. I object to this argument being made to the jury, because it is highly improper. The rights of the parties are fixed as of the date of death, and what he has said is prejudicial to this plaintiff, the widow. And I would ask the Court to caution the jury to disregard that remark.
'Mr. Power. That would be entirely improper, Your Honor. This is an inference from the facts presented to the jury --
'The Court. I think the law is that her rights are fixed as of the moment of death, and that the jury is to consider her damages as of that time, not to be lessened by the possibility of remarriage or a better marriage.'
The action of the court is believed to be correct. See Philpott v. Pennsylvania R. Co., 175 Pa. 570, 34 A. 856; Petition of United States, D.C., 92 F.Supp. 495; and The City of Rome, D.C., 48 F.2d 333.
In the first case cited, Philpott v. Pennsylvania R. Co., supra, a point was submitted stating that the jury was entitled to take the circumstances of the widow's remarriage into consideration by way of diminution of any damages which the plaintiff may have sustained by the death of her husband, Sidney John Philpott. The court refused to instruct as requested. The Supreme Court of Pennsylvania affirmed without, however, discussing the issue raised.
In Petition of United States, supra, Judge Goddard, on the circumstance of the remarriage of a widow of a deceased seaman, held that her remarriage did not mitigate or bar her recovery for pecuniary loss arising out of the death. Very little discussion of the subject, however, is mentioned in the decision.
In The City of Rome, supra, several of the widows who were claimants in admiralty had remarried. The government contended that in such cases the pecuniary loss was limited to the date of their remarriage. The argument advanced was that the widow's pecuniary loss is viewed in terms of her marital status and the consequent right to support, and when that is restored by remarriage, her loss is said to have been recouped. The Commissioner held, however, that the remarriage of a widow neither bars or mitigates the pecuniary loss arising out of the death of her husband. He went on to say, 48 F.2d at page 338:
* * * It may often happen that, by reason of inheritance, or insurance, or by reason of her own industry and superior capacity, a widow may be much better off pecuniarily after her husband's death than she had ever been in his lifetime. No one has ever suggested that such considerations must be taken into account in computing her pecuniary loss. Her remarriage is analogous. The fundamental question is, not her financial situation after her husband's death, but what she might reasonably have expected to receive from him had he lived.'
Judge Caffey in confirming the Commissioner said, 48 F.2d at page 343:
'* * * If we should enter upon an inquiry as to the relative merits of the new husband as a provider, coupled with his age, employment, condition of health, and other incidental elements concerning him, unavoidably we should embark upon a realm of speculation and be led into a sea of impossible calculations. Moreover, adherence to the rule followed by the commissioner seems essential to consistency with the holding that, upon the death of the first husband, there was 'an immediate, final and absolute vesting' in his widow, if the statutory beneficiary, of a cause of action on that account.'
See also Goodrich-Amram Pa. R.C.P. 2201-18.
In considering the motions for a new trial the court has in mind that it is the jury not the court which is the factfinding body. It is believed that the jury in this case weighed the contradictory evidence and inferences; that it judged the credibility of the witnesses and reached its verdicts by selecting from among conflicting inferences and conclusions that which they considered most reasonable. See Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520.
At the conclusion of the trial the court came to the belief that the case was one for the jury, and upon consideration of the oral arguments and briefs submitted, the court is still of the firm conviction that the verdicts of the jury upon all of the evidence were right.
The motions for a new trial will be denied.
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