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September 23, 1957

Elisabeth M. BYRNE, Administratrix of the Estate of Alice Mora, Deceased,
Michael A. MATCZAK and Ernest Stancick, individually and trading as Tylersport Garage

The opinion of the court was delivered by: DUSEN

This case is before the court on defendants' alternative post-trial motions (1) to set aside the verdict and enter judgment in their favor, or (2) for new trial, which were filed after entry of judgment on the jury's verdict for plaintiff. Plaintiff's decedent (an eighteen-year old woman, who left surviving an infant child and husband) was killed as the result of a 'head-on' collision between the car she was driving and defendants' truck loaded with sand weighing fifteen tons. The principal factual issue before the jury on the subject of liability was which vehicles were not being operated on the right side of the road at the point of collision.

I. Motion for Entry of Judgment in Defendants' Favor

 Even assuming the validity of defendants' contention that the tire marks of their truck, shown at X2, X3 and 4X on Exhibit P-1A, make it impossible for that truck to have made the tire mark at X on that photograph, *fn1" there is other evidence in the record to support the jury's finding that the collision resulted from the presence of a part of defendants' truck on the south side of the highway at the point of collision. Mr. Fleming, a disinterested witness, testified that he saw the truck coming down the hill before the collision occurred, about 1,000 feet from the point of impact, traveling at a speed of over 50 miles per hour (N.T. 129-131), weaving 'back and forth' across the center line of the road (N.T. 119), *fn2" and that 'the collision occurred about in the center of the road' with such violence that he could see a lot of dust and debris flying in the air (N.T. 120, 121). Defendants' evidence shows that the decedent was going at a speed of 30 to 35 miles per hour (N.T. 143), whereas their heavily-loaded truck was admittedly going at a speed of 40 to 45 miles per hour (N.T. 138) and traveled 185 feet from the point of impact in spite of the prompt application of its brakes. Such evidence would tend to corroborate the testimony of weaving. In the light of this evidence, plaintiff was entitled to have the issue of liability submitted to the jury. See Straight v. B. F. Goodrich Co., 1946, 354 Pa. 391, 396, 47 A.2d 605.

 II. Motion for New Trial

 A. Permitting the jury to go home for the night during their deliberations

 The jury left the court room in the custody of a Deputy Marshal *fn3" to begin its deliberations at 3:56 P.M. on June 5, 1957 (N.T. 332), and, with a recess for dinner at a hotel across the street from the Court House, continued its deliberations until 10:35 P.M., when the jurors were brought back to the court room by direction of the trial judge. After a negative answer to the question 'Have you agreed upon a verdict?' (N.T. 336), the trial judge sent the jurors home with directions to return to the court room the following morning at 10 A.M. to resume their deliberations, having cautioned them not to speak to anyone or to let anyone speak to them about the case and telling the jurors that each one would be asked the next morning if he or she had obeyed those instructions (N.T. 337-341). Prior to the separation of the jurors, counsel for defendants objected to this separation and the reconvening of the jurors to resume deliberations (N.T. 335, 342-4). At 10 A.M. on the morning of June 6, each juror answered this question in the negative (N.T. 347-8):

 'Have you discussed this case directly or indirectly with anyone since you left the courtroom at approximately a quarter to 11:00 last night, and has anyone discussed the case with you?'

 A Deputy Marshal was sworn and took the jury out to resume deliberations. After deliberating until 3:45 P.M., with a recess for lunch, the jury returned to the court room to ask a question indicating that they were discussing the damages (N.T. 367, 369-370). *fn4" The jury requested at 4:55 P.M. to be brought back to the court room to give their verdict (N.T. 372). Counsel for defendants contends that this procedure followed by the trial judge is grounds for a new trial, particularly in view of what they consider to be (a) the weak liability evidence in this case, (b) the unreliability of the testimony of Chief of Police Freas, and (c) the relatively long time the jury was permitted to deliberate before reaching a verdict.

 The federal courts have frequently stated that the separation of the jurors during their deliberations does not in itself 'affect the substantial rights of the parties,' as those words are used in Fed.Rules Civ.Proc. rule 61, 28 U.S.C. See Liverpool, & London & Globe Ins. Co. v. N. & M. Friedman Co., 6 Cir., 1904, 133 F. 713, 716-717; Guardian Fire Ins. Co. v. Central Glass Co., 5 Cir., 1912, 194 F. 851; and cases cited in those cases. *fn5" The Pennsylvania Supreme Court has said, in Mix v. North American Co., 1904, 209 Pa. 636, 645, 59 A. 272, 274: *fn6"

 'While it is true that the separation of the jury in a civil case, after the cause has been committed to them and before they have agreed upon a verdict, is not, as a mere matter of law, ground for a new trial, * * *.'

 There has been no showing of prejudice resulting from the separation of the jury in this case, such as improper conduct of, or tampering with, a juror during the period of separation. The trial judge does not consider that the separation of the jurors under the facts of this case is a proper ground for a new trial. *fn7"

 B. Items and language of special verdict and comments in charge on these items (pages 28-33 of defendants' brief)

 Defendants' objections to the form and language of the special verdict and to the trial judge's charge explaining it cannot be considered at this time, since no such objections were made to the special verdict when it was submitted to counsel for comment before the closing speeches (N.T. 199-201) and no such objections were made at the conclusion of the charge when counsel were given an opportunity to state their comments 'out of the hearing of the jury.' (N.T. 324.) See McDonald v. Pennsylvania R. Co., 3 Cir., 1954, 210 F.2d 524, 531; Callwood v. Callwood, 3 Cir., 1956, 233 F.2d 784, 788; Fed.Rules Civ.Proc. rule 51; cf. Smith v. Ellerman Lines, Ltd., 3 Cir., 1957, 247 F.2d 761. *fn8"

 Defendants contend that a surviving husband's compensation under the Wrongful Death Act, 12 P.S.Pa. ยง 1601 et seq., does not include any compensation for the loss of her companionship, relying on language in Pennsylvania Railroad Co. v. Goodman, 1869, 62 Pa. 329, 339. This language apparently only indicates that the husband's recovery does not include 'compensation by way of solace,' namely, a value for grief. *fn9" In an action covered by the Pennsylvania Wrongful Death Act, recovery for a surviving husband includes the value of the earnings, services and 'society' of his deceased wife. See Siidekum v. Animal Rescue League, 1946, 353 Pa. 408, 418, 45 A.2d 59. The Pennsylvania appellate courts appear to use the term 'society' as synonymous with 'consortium.' See Hewitt v. Pennsylvania R. Co., 1910, 228 Pa. 397, 398, 77 A. 623; McMeekin v. Pittsburgh Railways Co., 1911, 229 Pa. 572, 575, 79 A. 133; Reagan v. Harlan, 1903, 24 Pa.Super. 27, 29, 31. *fn10" In discussing item 4 of Question III-A, of the Special Verdict, *fn11" the charge did not define 'loss of consortium' and 'loss of society' separately and direct the jury to add a value for each of these terms, but confined its definition to loss of consortium as comprising 'affection, companionship, love, friendship, and the many acts, deeds and assistance which a wife renders to a husband to secure the success and happiness of a normal married relationship' (N.T. 311). *fn12"

 C. After-Discovered Evidence

 Defendants have filed a Supplemental Motion for New Trial, *fn13" with affidavits annexed, designed to show that newly discovered evidence, which could not have been discovered sooner in the exercise of due diligence, *fn14" requires a new trial in the interests of substantial justice. The newly discovered evidence consisted of the testimony of G. W. Freas, Chief of Police of Horsham Township, where the accident took place, given on April 2, 1956, at the trial of defendants' truck driver on a manslaughter charge. *fn15" Mr. Freas was one of the most important witnesses for plaintiff in this case and, on the morning of the second day of the jury's deliberations, the jury asked for the transcript of his testimony and for part of his cross-examination. *fn16" However, after a careful examination of the transcript of Mr. Freas' testimony at the criminal trial, the trial judge does not believe it is sufficiently material or inconsistent with his testimony in this case to justify the grant of a new trial under all the circumstances. Although he testified at the criminal trial (N.T. 32-4 attached to Supplemental Motion) that traffic, which was caught between the time of the accident and the time he could get a man in position to detour passing vehicles, was allowed to go through the debris resulting from the collision prior to the taking of the photographs offered in evidence, he was not asked this directly at this trial, where his testimony was that no dual-wheel vehicle, such as defendants' truck, went through the sand spilled from the truck and the debris prior to the taking of the pictures (N.T. 54-7). *fn17" Also, in summarizing Mr. Freas' testimony to the jury in answer to their question, asked subsequent to the charge, the trial judge pointed out that his testimony was that he knew of no other 'truck that had gone through this area,' prior to the taking of the pictures (N.T. 356) and that on cross-examination 'he admitted that there were tire marks * * * through the debris which he said were not' those of the defendants' truck. *fn18" Although he testified at the criminal trial that his action in letting this traffic through the area of debris and the sand 'caused disadvantage in the pictures,' he was not asked this question at the civil trial and his admission that some vehicles (other than dual-wheel trucks) went through the area made this deficiency in the photographs the logical conclusion from his civil trial testimony. *fn19"


 And Now, September 23, 1957, it is ordered that defendants' motion to set aside verdict and enter judgment for defendants, or in the alternative for a new trial (Document No. 17 in Clerk's file) and defendants' motion for new trial on ground of newly-discovered evidence (Document No. 20 in Clerk's file) are denied.

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