a finding of wanton conduct on the part of the defendant in this case. As mentioned, such a finding is not required to sustain the verdict. It can be sustained on ordinary negligence alone. Defendant having raised the point, it is still of no assistance in relieving it from the verdict and judgment. The conclusion of this court is that there is ample evidence of negligence, ample evidence of wanton conduct, either of which, or both concurring, was the proximate cause of decedent's death.
IV. Defendant Says the Verdict Is Excessive and Is Not Supported by the Evidence.
It is noticed on this phase of the case, defendant cites Patton v. Baltimore & O. Railroad, D.C., 120 F.Supp. 659, Armstrong v. Berk, 96 F.Supp. 182 and several Pennsylvania decisions, one of them DeSantis v. Maddalon, 348 Pa. 296, 35 A.2d 72, and others. Defendant contends that the evidence in the case discloses that the decedent had a very uncertain record of employment, that he had worked at several jobs for short periods of time with long intervals in between. Defendant says that he depended on his parents for support, food and clothing for his family. Defendant claims that no rate of pay was established. Defendant says that decedent's financial prospects were not attractive, as he had limited schooling, no arts or skills, and there was no indication of his becoming a steady worker.
Plaintiff, on the other hand, points to the testimony which indicates that decedent had a special skill as a mechanic, even considering his age. he was not yet 21 years old, but was married and had three children. Necessarily he had no long record of earning. Also, necessarily, says plaintiff, it is reasonable to rely on an inference that decedent had not reached the peak of the period of his earning capacity. When the amount of the verdict was announced by the jury, as trial judge I felt that its size was reasonable, considering the evidence as to decedent's age, the degree of responsibility that he had already accepted as a young man and his tendency, as shown by the evidence, to engage in remunerative employment or occupations. It is true the evidence shows that he had not worked long at one place or engaged in one type of activity for too long a period. It is felt, however, that this was but natural under the circumstances, considering his age. He had employment from time to time and was maintaining his family. He had demonstrated an earning capacity and aptitude for working in the mechanical field. It is reasonable to expect that this decedent had not yet reached the full peak of his earning power.
It is interesting to observe that while defendant's motions were under consideration, a decision of the Court of Appeals for this Circuit in Lebeck v. Jarvis, Inc., 250 F.2d 285, 288, was published. The court had under consideration a contention that a verdict was excessive. Judge Hastie said:
'* * * But otherwise, any claim that the verdict has been excessive requires a trial court to decide no more than whether the jury has reached a result which could rationally and dispassionately be reached by laymen on the basis of evidence relevant to the several categories of legally recoverable damage.'
In the present case, the several categories of damages other than funeral expenses are simply the pecuniary losses suffered first by the wife, and next by each of the three children. The decedent himself had a life expectancy of over forty-six years. He left a widow eighteen years of age. Under the Wrongful Death Act of Pennsylvania, a damage award such as the one in the present case is to be shared by the wife and minor children in the proportion they would take the decedent's personal estate in case of intestacy. 12 P.S. § 1602. Deducting expense items such as funeral, the jury award of approximately $ 75,000 in this case, if the verdict stands, will be shared by the widow and the three minor children. The wife's share is $ 25,000. Each of the children will have a share of $ 16,666. The child William was approximately two years old at the time of his father's death. William has lost support for a period of 16 to 18 years. Norma Jean was one year eight months old and has been deprived of support for 17 to 19 years. Carol Ann was not yet one year old and it can be assumed that she has been deprived of the support of her father for a period of from 18 to 20 years. Such items of damage are legally recoverable under the law of Pennsylvania and the amount of the verdict appears reasonable under all of the circumstances.
Two matters remain for mention. The first relates to defendant's objection to the admission of the testimony of Messrs. Brown and Jones as to the conversation between Schroyer, the driver, and other persons at the Jones Tavern. Schroyer, in the conversations about, which the jury was permitted to hear testimony, related to the witnesses the condition of his brakes and the general difficulties he was encountering on the trip. He was seeking assistance. It is to be remembered that here was an employee within the course of his employment, in the process of performing his duties. It was not the case of an agent admitting possible liability after an accident. It is believed that the testimony was properly admitted Schroyer was dead at the time of trial. Henry on Pennsylvania Evidence, Section 448, says: '* * * Oral or written statements made by a person in the regular course of his business or professional duty are competent after his death, if made of his own knowledge and at or near the time the act was performed.' It is believed that the testimony was properly admitted also, under Section 1523, et seq., of Wigmore on Evidence as being in the regular course of business. It also appears under the evidence in this case that there was no motive on the part of Schroyer to misinterpret the situation as to his brakes at the time of the conversations which were admitted in evidence.
Secondly, defendant says the court erred in submitting the issue of wanton conduct to the jury since the plaintiff had not properly raised this issue in his complaint. A short answer to this contention by the defendant is Rules 15(b) and 16 of the Federal Rules of Civil Procedure, 28 U.S.C. Rule 15(b) says when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The pretrial record will show that the issue of decedent's being a trespasser and of wanton conduct on the part of defendant first was raised by defendant's motion for summary judgment. At pretrial, as previously indicated, the contentions and the evidence to be presented on these issues were reviewed with the plaintiff's counsel stating substantially what plaintiff's evidence on these points would be. There was no objection by defendant's counsel at that time on the ground that the pleadings did not allege wanton conduct on the part of the defendant. The objection was first taken during the trial when such evidence was offered. Under the circumstances, defendant was not prejudiced. It had ample notice of plaintiff's proof.
Finally, on review of the issues and the evidence in this case, this court is satisfied that there is substantial evidence in support of the jury verdict. This court believes that the weight of the evidence favors the plaintiff and that plaintiff's evidence is credible. The verdict is one permitted under all of the evidence introduced and as this court believes that justice has been done, a new trial will not be granted. Magee v. General Motors Corp., supra, and Eastern Air Lines v. Union Trust Co., 99 U.S.App.D.C. 205, 239 F.2d 25.
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