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decided: March 24, 1972.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1964, No. 3774, in case of Addie F. Jenkins, administratrix of the estate of Tyrone H. Jenkins, deceased v. The Pennsylvania Railroad Company.


Richard L. Goerwitz, Jr., with him Swartz, Campbell & Detweiler, for appellant.

Jeffrey M. Stopford, with him James E. Beasley, and Beasley, Hewson, Casey, Kraft & Colleran, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 220 Pa. Super. Page 456]

This is an appeal from a jury verdict of $51,328.25 damages against appellant under the Wrongful Death and Survival Acts of the Commonwealth of Pennsylvania, following a trial before Judge Joseph E. Gold

[ 220 Pa. Super. Page 457]

    of the Court of Common Pleas of Philadelphia County. The appellee is the administratrix of her deceased son's estate. Motions for a new trial and to amend judgment were denied by a divided court en banc, consisting of the trial judge, Judge Stanley M. Greenberg and Judge James R. Cavanaugh who dissented. Judgment was entered upon the verdict and this appeal followed.

Decedent was a retarded 15 year old boy. He died several hours after being hit by one of appellant's trains on July 23, 1964. The jury's determination of the negligence of appellant's engineman is not contested on this appeal. Further, of the total verdict returned in both actions, appellant does not challenge the $5,000.00 under the Survival Act awarded for pain and suffering nor $5828.25 of the $7328.25 awarded in the Wrongful Death action. Appellant does attack the remaining $40,500.00 of the verdict as being excessive and inconsistent with the charge of the court. Appellant also asserts as error, the admission of certain evidence and the court's refusal of two particular points for charge.

At the time of his death the decedent was classified as retarded educable, with a mental age of 7 1/2 years. His intelligence quotient was 55. Appellee produced expert testimony indicating that during his life expectancy decedent would have been capable of limited learning and obtaining employment in any of a number of manual jobs which normally developed persons usually find tedious. In recent years employers have become increasingly more receptive to the idea of hiring the retarded for such work. There was additional testimony of the probable remuneration decedent would have received in such positions.

The measure of damages in death cases was established in Pennsylvania by Murray v. Philadelphia Transportation Co., 359 Pa. 69, 74, 58 A.2d 323 (1948),

[ 220 Pa. Super. Page 458]

    holding: "In cases under the Survival Act of 1937, supra, the jury should be directed to ascertain what the earnings of the deceased person would have been during the period of his life expectancy and to deduct from them the probable cost of his maintenance as shown by the evidence and to reduce the amount to its present worth." The opinion further indicates that reduction to present worth is accomplished by using "simple interest at the legal rate: Windle v. Davis, 275 Pa. 23, 29, 118 A. 503." Murray, supra, at n. 7. This rule has been applied with approval. Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 187 A.2d 646 (1963); Brodie v. Philadelphia Transportation Co., 415 Pa. 296, 203 A.2d 657 (1964).

Despite the Murray rule, verdicts in death cases requiring a determination of net earnings and the application of the "present worth rule" have often been unreasonable, illogical, and unfair.*fn1 In order to assist the jury in determining the present value of future damages determined to be due, expert testimony including the use of accepted actuarial tables is now permitted. Brodie, supra, at 301-303.*fn2 In the instant case appellant produced the only witness (an actuary) to testify on the application of the "present worth rule." "He testified as to two concepts of the reduction of a sum

[ 220 Pa. Super. Page 459]

    of money to present worth: (1) as to the amount of money to be invested in the bank now which untouched would produce a specific sum at the end of a set period of years, and (2) the reduction to present worth of a sum to be paid continuously throughout a period of years." (R. 270a) Despite this testimony the jury's confusion remained and they requested additional instructions on the doctrine of present worth from the trial judge after they had already deliberated for some time. At that time, he submitted to the jury the following interrogatories; their answers thereto being the dollar amounts indicated:

"Interrogatories to the Jury

(R. 229a)

In the Event That Your Finding Is For the Plaintiff You May Return Two Verdicts as Follows:

I. Survival (Estate)

(Here insert the total of the earnings

     per year after age 21 which the jury

     decides the decedent would have

     earned for his work expectancy keep-

     ing in mind that his age expectancy is

49.7 years) $140,800

Deduct therefrom the probable cost

     of his future maintenance for the

     same period $74,800

Net earnings $66,000

Net earnings reduced to present

     worth $39,000 []

Pain and suffering $5,000

Total Verdict $44,000

II. Wrongful Death (Family)

(The earnings which the decedent

     would have had for a period of three

     years from age 18 to 21) $9,600

Deduct therefrom the probable cost

     of his maintenance by his parents $5,100

Net earnings $4,500

Contributions to his parents to age 21 $1,500

Value of service to his parents to age

21 $0

Hospital bill $609.25

Funeral bill $719.00

Total Verdict $7,328.25

Total $51,328.25"

[ 220 Pa. Super. Page 460]

The crux of this case is the jury's determination of the present worth of decedent's net earnings (asterisked [] dollar amount), which appellant argues is excessive and inconsistent with the charge of the court.

The controlling rule of law here is stated in Swartz v. Smokowitz, 400 Pa. 109, 161 A.2d 330 (1960), quoting Justice Kephart in Brown v. Quaker City Cab Co., 274 Pa. 289, 117 A. 681 (1922): "'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.'" [Citation omitted.] The Court in Swartz further found that a new trial limited to damages was warranted because the amount of the verdict supported the trial judge's conclusion that "the jury did not apply the present worth rule, and that its enormous verdict . . . was the result of a misconception of the law or of prejudice, partiality, or sympathy". 400 Pa. at 117.

The jury here determined, by its answers to the trial judge's interrogatories, that decedent would have had

[ 220 Pa. Super. Page 461]

    net earnings of $66,000.00. As noted above, testimony as to how to reduce this figure to present worth indicated two methods by which this calculation could be made. Under the first method the present net worth would amount to .0575 or approximately $4000.00. Utilizing the second method, the award would be substantially higher, to allow for continuous periodic payments, but still not in excess of $25,000.00. It is therefore apparent that the jury's calculation and award of $39,000.00 in the survival action is excessive and indicates that the jury did not apply the present worth rule, either as a result of misconceiving the law or due to sympathy for decedent's family.*fn3

Reversed and remanded for a new trial limited to the issue of damages.


Order reversed and case remanded for new trial limited to the issue of damages.

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