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May 23, 1958

Nicola FABRIZI, Administrator of the Estate of Marie Fabrizi, Deceased, Plaintiff,
James F. GRIFFIN, James T. Nolan and Kramer Brothers Freight Lines, Inc., Defendants

The opinion of the court was delivered by: GOURLEY

This is an action to recover damages under the Pennsylvania Wrongful Death, 12 P.S. §§ 1601-1604, and Survival, 20 P.S. § 320.601 et seq., Statutes arising out of an automobile-truck accident in which the wife of the fiduciary plaintiff was instantly killed at the age of fifty-five.

Verdicts were returned in favor of Nicola Fabrizi in his fiduciary capacity and as representative of the estate of his wife under the Pennsylvania Survival Statute in the amount of $ 12,200, and under the Pennsylvania Wrongful Death Statute for the funeral expenses and pecuniary loss suffered by him in the amount of $ 68,100.

 The negligence of the defendant is not disputed and the sale question posed in the Motion for New Trial is the excessiveness of the verdicts returned under the Survival Statute and Wrongful Death Statute.

 Survival Action

 Under the Survival Statute of Pennsylvania, damages are predicated upon the earnings of the deceased person which would have been earned during the period of her life expectancy less the probable cost of her maintenance, said amount being reduced to its present worth. 20 Pa.P.S. Section 772; *fn1" Murray v. Philadelphia Transportation Co., 359 Pa. 69, 58 A.2d 323; Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104; Fisher v. Dye, 386 Pa. 141, 125 A.2d 472; Burns v. Goldberg, 3 Cir., 210 F.2d 646.

 Defendant advances the proposition that plaintiff should not be permitted to assert damages in behalf of the decedent predicated upon loss of earnings for the reason that plaintiff's individual income tax return is not a joint return and indicates all earnings to have been made in the name of plaintiff. That plaintiff's testimony that said income was divided between himself and the decedent wife for their joint effort in the operation of the restaurant business was conflicting, inconsistent and contradictory testimony on the part of a witness and should be deemed to have no probative value.

 The law is well settled that the credibility of witnesses and resolution of conflict in their testimony is for the jury. Where in one part of a plaintiff's testimony he is entitled to have his case submitted to the jury, and in another he is not, it is for the jury to reconcile the conflicting statements. Parker v. Yellow Cab Co., 391 Pa. 566, 137 A.2d 317. I must, therefore, in view of the jury's verdict accept as true plaintiff's statement that he divided the income with decedent. In view of the record being replate with testimony of the efforts exerted by decedent in the conduct of the restaurant business epitomized in her services as cook and attendant, and that the operation of the business would have been rendered impossible without her assistance, the jury had many inferences supported by the weight of the credible evidence, upon which to buttress its conclusion. The business conducted was certainly of a type that the wife could have carried on the enterprise the came as her husband has been doing if she had been the surviving spouse.

 Assuming, therefore, that decedent's earnings were in the realm of $ 1,000 per annum as evidenced by one-half the profits garnered in plaintiff's restaurant and, further cognizant that plaintiff's potential life as indicated by the United States Mortality Tables is twenty-three years, decedent's abortive death at the age of fifty-five could have resulted in the loss of $ 23,000 in future earnings.

 The record bespeaks an unusual degree of frugality on the part of the decedent, who confined her life to the elementary amentities of living, devoid of entertainment or expense consuming luxuries. At most, her maintenance consumed $ 300 per annum.

 I am satisfied that an award of $ 12,200 under the Survival Statute is reasonable and deducible under the evidence.

 Wrongful Death Statute

 In an action by a husband for the loss of his wife, his pecuniary compensation for the loss is the present value of the services as a wife; from this, however, must be deducted the possible cost of her maintenance which he would have been compelled to pay, as well as incidental items he would probably have given her. Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549; Siidekum v. Animal Rescue League of Pittsburgh, 353 Pa. 408, 45 A.2d 59; Burns v. Goldberg, supra.

 Also, the frugality, industry, usefulness, attention and tender solicitude of a wife surely make her services greater than those of an ordinary servant, and, therefore, worth more. These elements are not to be excluded from the consideration of a jury in making a mere money estimate of value. Filer v. Filer, 301 Pa. 461, 152 A. 567.

 Since the award under the Wrongful Death Statute totaled $ 68,100, of which $ 2,980 was represented in funeral costs, the verdict essentially is a payment of $ 65,120 for the pecuniary loss suffered by ...

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