the circumstances. But should not Toon have also given Hochrein the benefit of the controller's information so that he too could appraise the situation as it developed and attempt to keep a watchful eye on the Aeronca's movements? We think Toon should have apprised Hochrein of the presence of an aircraft in his pattern which seemingly disregarded all signals from the controller. The continuing failure to so inform Hochrein of the existence of a possible danger, in the form of an unseeing aircraft, was a continuing breach of duty owing to Hochrein which contributed to the cause of the collision and pilot Hochrein's death.
We turn now to the issue of damages. This action was brought under the Pennsylvania Wrongful Death Act, 12 P.S. §§ 1601-1604, and the Survival Act, 20 P.S. §§ 320.601, for loss accruing to Hochrein's family as a result of his death and the decedent's own loss which accrues to his estate.
At the time of his death, Hochrein's family included his wife and three small children, ages 11, 8 and 5. Mrs. Hochrein testified that her husband contributed $ 80.00 per week to the family for its support immediately prior to his death. This is uncontradicted and, in light of his earnings to date,
will be accepted by this Court as the loss to his family, in equal shares. Therefore from the date of the accident to the present, the family has a total loss of $ 20,800.00. The children could expect contribution for their maintenance until they reached majority. Therefore, the Court finds their future loss, reduced to present worth to be
Mr. Hochrein had a life expectancy at the time of his death of 40 years. Therefore, his wife, Phyllis, could expect future contribution for 35 years, reduced to present worth, amounting to $ 15,077.92. Also recoverable under the Wrongful Death Act is a reasonable funeral expense. In this case, the cost was $ 881.50 which is certainly reasonable.
The loss to the decedent's estate can best be calculated by taking a reasonable figure as his average gross earnings for the rest of his working life which was thirty-three years.
Here the basis of recovery is the pecuniary loss to the estate and it is reasonable to assume that the decedent would have worked as long as the average man, but probably much more productively.
There is ample basis in the record for a finding that Hochrein was an exemplary worker for his employer, Spider Staging Sales Company, and anxious to get ahead. His tax returns
reflect an almost steady increase in salary and/or commissions and the testimony of his former superior and fellow workers indicate that this accession to higher earnings would have continued. We cannot accept however, as being entirely too speculative, Mr. Adams'
opinion that Hochrein would have been earning $ 40,000.00 per year by 1963 and continue at that rate for the rest of his life. The two cases relied on by the plaintiff to support this extremely high earning figure, Smail v. Flock, 407 Pa. 148, 180 A.2d 59 (1962), and McCullough v. Holland Furnace Co., 293 Pa. 45, 141 A. 631 (1928) are both inapposite on their facts. In the former, the decedent kept no financial records so evidence was allowed to establish his past earning record. In the latter, the decedent's services had a definite market value and therefore an opinion was allowed as to that market value at the time of trial to serve as a basis for future losses.
There was testimony that Hochrein's replacement as Spider's New York salesman earned $ 19,800.00 in 1960. We will accept this as a reasonable figure for Hochrein's gross earning over his work life expectancy. Though there could very well have been more lucrative years, there would probably be lean ones as well. The commissions earned by salesmen in any line of endeavor are subject to many fluctuations completely out of their control. However, as an average gross earnings figure, it is reasonable.
From his gross earnings, we must deduct the cost of maintaining himself and his business expenses. In this regard, due consideration is given to the fact that Hochrein was maintaining his home in Portland, Pennsylvania and required to also maintain an apartment in New York City. It is also true that Hochrein had the added expense of travelling between these residences. His tax returns reflect expenses incurred which were not reimbursed by the Company. Therefore, it is reasonable to expect that Hochrein would have spent $ 9,800.00 on his maintenance and expenses.
Hochrein's estate is entitled to $ 50,000.00 for earnings lost to date and $ 134,061.00 for future earnings during his work life expectancy,
reduced to present worth. The total of $ 184,061.00 must be reduced by the recovery of $ 56,785.00 in the Wrongful Death action.
Therefore, the Survival Act damages amount to $ 127,276.00.
The plaintiff is also entitled to recover for the loss of the Cessna aircraft the value of which was stipulated at trial to be $ 2,000.00.
Damages may be summarized as follows:
Survival Action damages $ 127,276.00
Wrongful Death damages $ 57,666.50
Property damage $ 2,000.00
© 1992-2004 VersusLaw Inc.