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JONES v. FRIESEL

August 3, 1962.

Ellen Marie JONES, Administratrix of the Estate of Florence A. Strothers, deceased, Plaintiff,
v.
Robert W. FRIESEL and Margaret Brown, Defendants.



The opinion of the court was delivered by: MARSH

MARSH, District Judge.

 In her motion for a new trial the defendant, Brown, asserts that the verdict is excessive; *fn1" the other grounds were withdrawn.

 In our opinion, under the evidence the verdict of $30,000.00 in the survival action is excessive, but the verdict in the wrongful death action is not.

 It is settled that the trial courts should not interfere with jury verdicts in death cases unless unfairness, mistake, partiality, prejudice or corruption is shown, or the damages appear grossly exorbitant. The verdict must be clearly and immoderately excessive so as to offend the conscience and judgment of the court. Stark v. Lehigh Foundries, 388 Pa. 1, 130 A.2d 123, 136 (1957). The federal judiciary has a strong belief in the right to trial by jury and does not look with jaundiced eye upon a plaintiff's verdict after it has been given the careful and conscientious scrutiny of a jury. As stated in Armit v. Loveland, 115 F.2d 308, 314 (3d Cir. 1940):

 "Courts in general are reluctant to disturb a jury's verdict on the ground of excessiveness where the damages are unliquidated and there is no fixed measure of mathematical certainty."

 See also, Jones v. Atlantic Refining Co., 55 F.Supp. 17 (E.D.Pa.1944). But it has also ben said that if excessive verdicts were permitted to stand, the right of trial by jury would be seriously jeopardized, and the power of the trial judge to reduce the verdicts or set them aside is not in derogation of the right to trial by jury but is one of the historic safeguards of that right. Cf. Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, Pub. Co., 178 Pa. 481, 36 A. 296 (1897). Pub.Co., 178 Pa. 481, 36 A. 296 (1897).

 In the wrongful death action Gwendolyn Strothers is entitled to recover the financial contributions which she could have expected with reasonable certainty from her unmarried daughter, Florence. Gwendolyn, 65 years old, had a life expectancy of 17.4 years. Florence had a life expectancy of 35.4 years. Prior to the accident, Gwendolyn was buying a house and lived in it with Florence, two other daughters, and two grandchildren. Both Florence and Gwendolyn worked as domestics in Washington, Pennsylvania. Gwendolyn was getting old and had experienced an illness which decreased her earning power. During Gwendolyn's illness Florence paid the bills and contributed $50.00 a month toward the purchase of the house. From the evidence it was reasonable for the jury to have found that the monthly contributions at the rate of $50.00 would have continued as Gwendolyn became older and unable to work. Computed at the rate of $50.00 per month, Gwendolyn would be entitled to $1,635.00 from the date of death until trial, and for the remainder of her life expectancy $10,440.00, the present worth of which, discounted at the rate of 6%, is $6,286.00. *fn2" Adding the funeral bill of $1,190.14, the total is $9,111.14. Obviously, the verdict in the wrongful death action is not excessive.

 In the survival action plaintiff is only entitled to recover such damages as would reasonably compensate the decedent's estate for the loss sustained by it as a result of Florence Strother's death. It is difficult to believe that Florence would ever have accumulated $30,000.00; however, wide latitude should be given to the jury's discretion. Cf. Swartz v. Smokowitz, 400 Pa. 109, 161 A.2d 330 (1960).

 From the evidence the jury could have found that Florence's earning power was reflected at 1.00 per hour for five days a week for 50 weeks a year. There was no evidence as to her education. She also received lunch as part of her compensation, the value of which does not appear. Using the wages as a measure, Florence could have earned up to trial $5,504.00, and during the remainder of her expectancy $70,840.00 the present worth of which, discounted at the rate of 6%, would be about $28,996.00, or a total of $34,500.00. Deducting from this amount the award of $9,000.00 in the wrongful death action, the remainder is $25,500.00. From the remainder should be deducted Florence's cost of maintenance.

 There was no direct evidence from which the jury could calculate this item; the parties were content to leave this deduction to the speculation of the jury. See: Bernstein, "Damages in Personal Injury and Death Cases in Pennsylvania - A Supplement", Pennsylvania Bar Association Quarterly, vol. XXVI, No. 1, pp. 26, 35 (October 1954). Counsel for Brown argues: "The Department of Labor and Industry for the Commonwealth of Pennsylvania says the minimum amount needed for a female for bare existence is $69.00 [a month]." However, this estimate was not offered in evidence by the defendant, and it appeared, as argued by plaintiff, that a family of six persons dwelling together for economic reasons reduces the per capita expenses of each. It appeared that prior to her mother's illness Florence had saved some money which she spent for her mother's medical expenses and maintenance but the amount was not disclosed. She was frugal and had no bad habits.

 Giving to plaintiff the benefit of the jury's wide discretion as to the speculative elements, i.e., cost of maintenance and the value of the lunches, I would not consider a verdict in the neighborhood of $20,000.00 excessive. *fn3" However, in my opinion the $30,000.00 verdict is clearly excessive.

 In the interest of justice, however, in this case I do not feel compelled to grant a new trial unconditionally. Northern Pacific R.R. Co. v. Herbert, 116 U.S. 642, 646-647, 6 S. Ct. 590, 29 L. Ed. 755 (1886). *fn4" If a new trial is to be held, it will be on the issue of damages in the survival action alone. Rule 59(a), Fed.R.Civ.P., 28 U.S.C.A.; Yates v. Dann, 11 F.R.D. 386 (D.Del.1951). It is my judgment that in order to do justice between the parties, the plaintiff should be required to remit in the survival action all monies awarded under the verdict in excess of $20,000.00. If plaintiff fails to file a stipulation to that effect within twenty days, a new trial on the issue of damages in the survival action will be awarded.

 One other matter remains for discussion. Counsel for Brown argues that present worth should be computed at the rate of 4 1/2%. Counsel for plaintiff contends that "there is no arbitrary rate that the Court must use in computing present worth value", citing Thomas v. Conemaugh Black Lick Railroad, 133 F.Supp. 533, 544 (W.D.Pa.1955). I do not agree with either counsel. The Thomas case is not apposite since it was decided under federal law, the action ...


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