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GALLAGHER v. FOUR WINDS MOTEL-HOTEL ET AL. (03/31/75)

decided: March 31, 1975.

GALLAGHER, APPELLANT,
v.
FOUR WINDS MOTEL-HOTEL ET AL.



Appeal from judgment of Court of Common Pleas of Delaware County, No. 14845 of 1969, in case of Joseph E. Gallagher, Administrator of the Estate of Joseph E. Gallagher, Deceased, v. Four Winds Motel-Hotel and Al Nero and Rose Nero.

COUNSEL

Roger L. Mutzel, with him Kassab, Cherry and Archbold, for appellant.

William D. March, with him Scallan, March, Berman and Del Fra, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j.

Author: Watkins

[ 233 Pa. Super. Page 3]

This is an appeal from the Court of Common Pleas of Delaware County, Civil Division, in an action for Wrongful Death and a Survival Action brought by the plaintiff-appellant, Joseph E. Gallagher, Jr., against Al Nero and Rose Nero, owners of the Four Winds Motel-Hotel. The jury returned a verdict in favor of the appellant in the amount of $1,995.00 under the Wrongful Death action and in favor of the appellees under the Survival action. The appellant filed a motion for a new trial on damages alone which was denied by the Court en banc. This appeal followed seeking a new trial for damages only.

The facts giving rise to this action occurred on December 20, 1968. On that date, Joseph E. Gallagher, Jr., who was then 21 years of age, quit work about 3:00 P.M. after he and his father, by whom he was employed as a bricklayer, finished a job. The father and son stopped off at a tavern on their way home from work where they enjoyed a few drinks. The father left the establishment about an hour later while the son remained at the tavern. Joseph E. Gallagher, Jr. then frequented another drinking establishment in the company of his cousin, Richard Gallagher, before returning to his parents' home where he lived. The son and his cousin reached his parents' home somewhere in the vicinity of 10:30 P.M. that evening. Richard Gallagher had to drive his cousin home as, by this time, Joseph was intoxicated. When he returned home both Richard and his father admonished Joseph to remain at home because he was obviously intoxicated. However, the son went upstairs, showered, shaved and got dressed and insisted on going to the Four Winds to get some clams. Richard accompanied him on this trip.

At the Four Winds, Joseph ordered clams and had two drinks. While there, he saw one Nelson Feliciano with whom he had had some trouble in the past. A fight ensued between these two individuals resulting in both men confronting each other on the parking lot of the establishment.

[ 233 Pa. Super. Page 4]

Richard Gallagher and others had tried to break up the fight which was provoked by Joseph Gallagher. As Richard was physically removing Joseph from the scene, Joseph broke away from him and went after Feliciano who had already been badly beaten by Joseph. Feliciano pulled a knife and stabbed Joseph in the chest. Richard tried to summon a doctor but Joseph indicated that he desired to go back into the establishment whereupon he and Richard did so. As they got inside the door, Joseph was asked how he felt and he replied that he was "all right". Seconds later he fell over dead.

Joseph E. Gallagher, Sr., representing his son's estate, brought this action against the Neros on the grounds that they were negligent in serving a visibly intoxicated person. At trial, the decedent's father testified that his son's wages were $3.25 per hour. He worked a 40-hour week and worked 50 weeks per year. He also testified that his son spent $55.00 for food, clothes and entertainment and had no other expenses of which he knew. The decedent was separated from his wife and it was not known whether he was paying her any support. An actuary testified that the decedent's future earnings, reduced to present worth, would amount to $97,890 from the date of trial if based on the rate of $3.25 per hour. However, the decedent's father testified that as of the date of trial the wages being paid to persons doing the same work as his son amount to $5.00 per hour. At that rate, his future earnings, reduced to present worth, would be $150,600. Since 4 years had elapsed from the time of decedent's death to the time of trial, there was also the additional amount of $26,000 which the decedent may have earned had he lived. Upon cross-examination, the actuary admitted that these figures did not take into account decedent's taxes, his social security deductions, and his cost of personal maintenance.

The appellant claims that the amount of damages awarded by the jury was inadequate in ...


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