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SWARTZ v. SMOKOWITZ. (06/03/60)

June 3, 1960

SWARTZ, APPELLANT,
v.
SMOKOWITZ.



Appeal, No. 82, Jan. T., 1960, from order of Court of Common Pleas of Northumberland County, May T., 1958, No. 138, in case of William L. Swartz, administrator of estate of Dale Wesley Swartz, deceased v. Alfons Smokowitz et al. Order affirmed.

COUNSEL

Robert V. Moser, for plaintiff, appellant.

Carl Rice, for defendants, appellees.

Samuel Gubin, for additional defendant, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bok

[ 400 Pa. Page 111]

OPINION BY MR. JUSTICE BOK.

Plaintiff's decedent, a boy of 16, was passenger in a car driven by his brother when it was in collision with a truck. He died seven hours later without regaining consciousness.

In the ensuing trial both drivers were found negligent. There is no question of the decedent's contributory negligence. The liability of the drivers is conceded and the only question before us is the excessiveness of the verdicts.

Suit was brought by the decedent's administrator under the Death Act of April 26, 1855, P.L. 309, as amended, 12 P.S. § 1602, and also under the Survival Act of 1937, as amended by the Act of April 18, 1949, P.L. 512, § 603, 20 P.S. § 320.601 et seq. Under the Death Act the jury awarded plaintiff $13,048 and under the Survival Act $94,000. The court below granted a new trial limited to damages only, and the plaintiff has appealed. high school and hence had three more years of schooling. He was just under six feet tall, weighed about 170 pounds, played soccer and wrestled at school, and was an avid hunter and fisherman. His health was good, save for an earlier ear infection that once made him faint, he was punctual, didn't go out much, and was a great reader. He did the chores at home, helped his father in construction work, and made his spending money by working during vacations for a cemetery at a dollar an hour on an average of thirty hours a week. He loved animals and had planned to become a veterinary doctor. He had an I.Q. of 113, which is above average, and was an average to better than average student. He was one of five brothers, and was obedient, a hard worker, and always pleasant to get along with.

[ 400 Pa. Page 112]

The controlling rule of law is stated in Brown v. Quaker City Cab Co., 274 Pa. 289 (1922), 117 A. 681, where Mr. Justice KEPHART said: "Where the evidence shows no justification for the award made, and it is so clearly beyond reason as to lead to the conclusion the amount must have been reached as a result of some misconception of law or evidence, if not partiality, prejudice or sympathy, - whatever the impelling motive, - if, under the circumstances, it is so out of proportion to the damages proven as to make necessary its being set aside as excessive, it will be so ordered: Gail v. City of Philadelphia, 273 Pa. 275." See also Brown v. Paxton, 332 Pa. 260 (1938), 2 A.2d 729; Stark v. Lehigh Foundries, Inc., 388 Pa. 1 (1957), 130 A.2d 123.

In the instant case the court below said in its opinion: "The award made by the jury in the survival action is so grossly excessive as to shock the conscience of the Court. The awards, not only in this action but also in the wrongful death action, are so clearly beyond reason as to justify the belief that the amounts must have been reached as the result of some misconception of the law or the evidence, if not of prejudice, partiality or sympathy. Whatever was the impelling motive, we are convinced that under the circumstances disclosed, ...


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