Appeal from judgment of Court of Common Pleas of Potter County, March T., 1971, No. 113, in case of Howard Prince, Administrator of the Estate of Ronald Prince, Deceased, v. Bernard Adams, Jr.
Harold B. Fink, Jr., with him Fink and Young, for appellant.
Thomas A. Walrath, with him Walrath & Coolidge, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Jacobs and Van der Voort, JJ., dissent. Hoffman, J., did not participate in the consideration or decision of this case.
[ 229 Pa. Super. Page 152]
In this case the plaintiff filed a wrongful death and survival action as administrator of the estate of a fifteen-year-old son who had been killed in an automobile accident. A verdict in favor of the plaintiff was rendered in the amount of $7,189.20. Plaintiff filed a motion for new trial on the grounds that the verdict was inadequate. The trial court granted the motion for new trial as to damages only. The defendant appealed to this court which affirmed the decree of the trial court. See Prince v. Adams, 221 Pa. Superior Ct. 806 (1972).
A second trial was held on October 5, 1972, the sole issue being the amount of damages to be awarded. Special damages under the wrongful death action were stipulated to be $2,189.20. The jury nevertheless made an award on the wrongful death action in the amount of $2,689.20. The evidence as to the future loss of earnings
[ 229 Pa. Super. Page 153]
under the survival action was as follows: the deceased, Ronald Prince, was fifteen years old at the time of his death. There was evidence, actuarial tables, that Ronnie would have lived to be 69 years old. His propensity for work was high in that he had raised sheep and cattle and had held various part-time jobs demonstrating a capacity for earning income. Ronald was only an average student, but he did possess a better than average I.Q. of more than 120. There was also testimony as to the exemplary character of the deceased who, at the age of fifteen, contributed to the support of his mother. The jury weighed this evidence and awarded $1,000.00 under the survival action. Thus the total verdict was $3,689.20. Plaintiff again moved for a new trial based on the inadequacy of the verdict, but the trial court this time refused to grant the motion. The reasons assigned for this action by the trial court were that the plaintiff had already had two trials on the damages issue and that the public interest in finality of judgments outweighed the alleged error that plaintiff raised. From this decree plaintiff appeals, again raising the issue of the inadequacy of the verdict.
In order to determine whether this verdict is in fact inadequate, a brief review of the damages recoverable under each separate cause of action is in order. An action filed under the Wrongful Death Statute, Act of April 15, 1851, P. L. 669, § 19, 12 P.S. § 1601, is brought on behalf of those individuals who have survived the decedent and have sustained damages as a result of the defendant's negligence. The action is designed to compensate these individuals for the losses which they personally have sustained. It does not involve any losses which were incurred by the decedent. The measure of damages for the death of a minor in a Wrongful Death Action consists of: funeral and medical expenses, plus the total earnings which would have been earned by the child up to the age of twenty-one, minus the cost of
[ 229 Pa. Super. Page 154]
maintaining the child during this period, with the resulting amount discounted to its present value: Murray v. Philadelphia Transportation Company, 359 Pa. 69 (1948).
Rule 213 of the Pennsylvania Rules of Civil Procedure allows an action filed under the Wrongful Death Statute to be joined with a survival action brought under the Act of April 18, 1949, P. L. 512, 20 P.S. § 320.601, now found in the Act of June 30, 1972, P. L. 508, No. 164. See also Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). A survival action is brought by the administrator of the deceased plaintiff's estate in order to recover damages to the estate of the decedent which resulted from the negligent act which caused his death. The measure of damages to the estate of a decedent minor under the survival action is: the earnings the decedent would have generated during his adult life, minus his probable expenditures in maintaining himself over this period, plus any award for pain and suffering, again discounted to a present value: Swartz v. Smokowitz, 400 Pa. 109 (1960); Murray v. Philadelphia Transportation Co., supra. There are actuarial tables available and ...