UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: August 28, 1968.
VERA ANNE SCHRANNER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM SCHRANNER, JR., DECEASED
WHEELING STEEL CORPORATION, A DELAWARE CORPORATION, APPELLANT, V. CAROL SARVER, ADMINISTRATRIX OF THE ESTATE OF ROBERT SARVER, DECEASED. VERA ANNE SCHRANNER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM S. SCHRANNER, DECEASED V. WHEELING STEEL CORPORATION, A DELAWARE CORPORATION, APPELLANT, V. CAROL SARVER, ADMINISTRATRIX OF THE ESTATE OF ROBERT SARVER, DECEASED. CAROL SARVER, ADMINISTRATRIX OF THE ESTATE OF ROBERT SARVER, DECEASED V. WHEELING STEEL CORPORATION, A DELAWARE CORPORATION, APPELLANT, V. VERA ANNE SCHRANNER, ADMINISTRATRIX OF THE ESTATE OF WILLIAM SCHRANNER, DECEASED.
Kalodner and Van Dusen, Circuit Judges, and Wright, District Judge.
Author: Per Curiam
Opinion OF THE COURT
These appeals challenge judgments entered on jury verdicts in three jointly-tried actions under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601, and Survival Act, 20 P.S. § 320.603, resulting from the deaths of appellees' decedents following the capsizing of a small boat in the Allegheny River on April 26, 1964. The small boat was carried under defendant's barges when the allegedly negligent operation of the propellers of a tug, owned and operated by appellant, caused the accident to the small boat and the resultant tragedy. An examination of the record has convinced us that the evidence justifies those parts of the jury's verdicts finding the appellant negligent and liable for this accident.
Although the amounts of the verdicts do not appear excessive, see Lebeck v. William A. Jarvis, Inc., 250 F.2d 285 (3rd Cir. 1957), we have concluded that the judgments under the Wrongful Death Act in the case (C.A. 64-674 -- Appeal No. 16987) of the minor and in the cases (C.A. 64-675 & 64-676 -- Appeals Nos. 16988 and 16989) of the deceased adults must, regrettably, be set aside and the cases remanded for a new trial on the damage issues under the Wrongful Death Acts due to the failure of the jury to reduce amounts awarded for probable future earnings to present worth.*fn1 See Jamison v. A. M. Byers Company, 330 F.2d 657, 662 (3rd Cir. 1964). The Pennsylvania appellate courts have repeatedly held that awards for probable future earnings must be reduced to present worth. See Littman v. Bell Telephone Co., 315 Pa. 370, 172 A. 687, 690 (1934); Bingler v. Hopper, 336 Pa. 58, 7 A.2d 351 (1939); Murray v. Philadelphia Transp. Co., 359 Pa. 69, 72-74, 58 A.2d 323, 325-326 (1948); Brodie v. Philadelphia Transportation Company, 415 Pa. 296, 203 A.2d 657 (1964). Although the charge directed the jury to make such a reduction,*fn2 the Verdict forms submitted by the trial judge to the jury, as filled in by the jury, make clear that no such reduction was made.*fn3
Unfortunately, as explained in footnote 2, the notes of the court reporter covering the instructions to the jury when they returned, after several hours of deliberation, with the Verdict forms are not available, but the verdict forms containing the itemizations in footnote 3 above are in the record.*fn4 The itemized Wrongful Death Act verdict forms in the cases of the two deceased adults were rejected by the trial judge, who sent the jury out with instructions to bring back a verdict in one lump sum in each of those two cases. New Verdict forms were returned by the jury in these two cases, but these new lump sum verdicts were the exact total of the itemized amounts on the Verdict forms originally returned by the jury, so that it is clear that the second verdicts did not contain any allowance for reduction to present worth of the items described in footnote 3.*fn5
Under these most unusual circumstances, a new trial of the damage issues under the Wrongful Death Act in the cases of the adult decedents (see footnote 1) will be necessary unless plaintiffs in those cases will remit such portion of the verdicts under those Acts as counsel may be able to agree, or the court may determine on a supplemental record (see computations at pp. 37 and 39-40 of defendant's brief), are necessary to reduce the amounts awarded for probable future earnings (see footnote 3) to present worth. See Dimick v. Schiedt, 293 U.S. 474, 482-488, 55 S. Ct. 296, 79 L. Ed. 603 (1935); Neese v. Southern Railway Co., 350 U.S. 77, 76 S. Ct. 131, 100 L. Ed. 60 (1955); Boldurian v. Aì Svenska Amerika Linien, 246 F. Supp. 413, 418 (E.D.Pa.1965). In view of the possibility of such a remittitur, these cases (Nos. 16988 and 16989) will be remanded to the District Court with directions to either reduce the assessments of damages under the Wrongful Death Act in accordance with the reduction to present worth principle as described above, if the plaintiffs so agree, or to vacate those portions of the District Court judgments entered December 16, 1966, awarding damages in each of these cases under the Wrongful Death Act and to hold a new trial to determine the damages under such Act.
Although the failure of the verdict in the minor's case (No. 16987) to make any reduction to present worth in the award of loss of earnings for the years 1973-1975 (when the minor, 9 years old at the time of his death, would have been 18-21) might be corrected by a remittitur of the type described above, the Wrongful Death damage award in the minor's case must be set aside because the record in that action discloses, in addition, that there was no deduction from the minor's probable earnings of $2600. a year from age 18-21 (footnote 3) of the cost to the parents of such minor's maintenance. See Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549, 553 (1930). The original charge did not discuss the application of the Wrongful Death Act to the deceased minor's case, but when this omission was called to the trial judge's attention, he stated out of the presence of the jury that he would instruct the jury as follows:
"In an action for wrongful death of a minor child, the measure of damages is the funeral and medical expenses and the minor's earnings to age 21, minus his maintenance, reduced to such net earnings at their present worth."
As noted above, the supplemental charge to the jury does not appear in the record but, assuming this charge was given, the absence of any deduction for expenses on the Verdict form gives a strong indication that no deduction for such maintenance was made in this case, since in the Verdict forms returned in the case of the adult decedents by the same jury at the same time there were noted deductions from probable future earnings of maintenance expenses (see footnote 3).
For the foregoing reason, that part of the District Court judgment entered December 16, 1966, and appealed from in No. 16987, awarding damages under the Wrongful Death Act, will be set aside and this case will be remanded for a new trial to determine the damage issues under such Act. As stated above, the causes at Appeal Nos. 16988 and 16989 will be remanded to the District Court with direction that the judgments under the Wrongful Death Act appealed from in those cases either be reduced by remittitur or vacated with provision for a new trial to determine the damages under such Act. The separate parts of the judgments for damages under the Survival Act are not challenged and will not be vacated.*fn6