limited to those who are old enough to be proper witnesses.
'Since it is academic here and they were not called, I don't have to go into how old a child has to be to understand the meaning of an oath and so on in order to be acceptable as a witness in a court proceeding. But, with respect to those of the children who are of the age to be witnesses, it is contended by the defendant that that rule should apply here. It is, of course, for the jury to determine what inferences it chooses to draw from the failure of such witnesses to be called.
'On the other hand, it is the contention of the plaintiff that the rule would apply here, which is also a valid rule -- and I so charge -- that when the persons involved were present in the courtroom, the defendant could have called them as defense witnesses if it had been deemed desirable so to do. So, again, what inferences are to be drawn from the failure to produce additional witnesses is a matter for your determination in accordance with all of the other rules of law that I have set forth. And, your verdict is to be based upon the entire record, including all the evidence before you.' (Tr. 327-28).
This instruction did full justice to both parties impartially. In any event it would be absurd to suppose that the outcome of the case turned to any extent on the failure of either party to call several young children as witnesses concerning facts thoroughly covered by other testimony. In fact, if they had been called it might have been proper to exclude the testimony as cumulative or repetitious. We find no merit in this contention of defendant's.
We likewise see no substance in defendant's contention that it was error to permit the surviving husband to state that his finances did not permit hiring additional help besides those presently in his household. This circumstance was of relevance in connection with the testimony of Dr. Drisko, a family relations expert, concerning the nature and extent of the services necessary as a substitute for or equivalent of those which decedent mother would have provided for her family had she continued to live.
There is likewise no merit in defendant's point regarding possible remarriage of Mr. McCoy. If any party was prejudiced in this connection it was the plaintiff. The Court first permitted defendant to cross-examine Dr. Drisko with respect to the change in his plan of needed services that would result in the event Mr. McCoy should re-marry. Subsequently, the Court concluded that this line of questioning was improper, as under the law of Pennsylvania the rights of the parties entitled to damages in Wrongful Death and Survival actions are fixed at the time of death. Johns v. Baltimore & O.R.R. Co., 143 F.Supp. 15, 28 (W.D.Pa.1956). The Court thereupon instructed the jury as follows:
'Members of the jury, before we go any further, there is an irregularity here for which I am responsible, which I want to straighten up right now. That is with respect to the cross examination by Mr. Jacobson of the witness, Doctor Drisko. He asked a question which brought up the subject of remarriage of Mr. McCoy.
'Well, the subject is one which really should not be mentioned at all in the case, and you are therefore instructed to disregard it entirely. When the time comes for the charge, I will explain in full the rules for determining the measure of damages. But I will just say now that whatever the damages are as determined by the jury in accordance with the instructions of the Court, they are to be determined as of the date of the death of the decedent without regard to any speculative possibilities of any future remarriage of the husband.
'So, I think you are all intelligent people and can succeed in erasing from your mind any subject that should not have been brought into the case. The plan that was presented by the witness, of course, can be discussed fully on cross examination. And, the theory upon which I permitted the question to be asked was that I thought it proper to bring out that this plan as prepared did not contemplate any remarriage. I understand that is the fact that the plan was prepared without any contemplation of such a contingency. It was permitted, of course, upon that feature and perhaps for that purpose it might have been proper to ask a question to develop the fact as to the exact scope of the plan prepared and the pre-suppositions upon which it is based.
'Just like if you are preparing a table of statistics of some kind, it is customary to show your sources where you got your information and how you treated the information for statistical purposes in order to determine the underlying data and the method of processing which has been used in preparing the exhibit. But, in this particular matter, I am now satisfied that it is a matter that really shouldn't be mentioned at all in the case, and therefore you are instructed to disregard that matter completely. So, I think with that explanation, we can now proceed with the remainder of the Doctor's testimony. An exception is granted to the defendant.' (Tr. 208-210).
Defendant now contends that, since plaintiff called Dr. Drisko as an expert witness concerning plans for the future, cross-examination would be proper concerning the possibilities and effect of future re-marriage upon the expenditures called for by the plan. We find no merit in the contention that the type of proof used to establish the items of damages claimed by plaintiff should change the admittedly applicable rule that the damages are fixed at the time of death and that it is improper to indulge in speculation concerning the re-marriage of the surviving spouse.
We also find no merit, under the circumstances of the case, in defendant's final contention that the verdicts are excessive. It will be noted that the Court charged (Tr. 305) regarding present worth that the legal rate of interest of 6% Should be used, in accordance with the language of the Supreme Court of Pennsylvania in Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 585, 187 A.2d 646 (1963).
Accordingly, defendant's motion for judgment non obstante veredicto and for a new trial should be denied.