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JOHN F. SLAVIN v. WILBUR A. GARDNER (12/28/79)

filed: December 28, 1979.

JOHN F. SLAVIN, ADMINISTRATOR OF THE ESTATE OF TIFFANY R. SLAVIN, DECEASED, AND JOHN F. SLAVIN AND MARY ANN SLAVIN, PARENTS IN THEIR OWN RIGHT
v.
WILBUR A. GARDNER, APPELLANT. V. MARY ANN SLAVIN



No. 458 April Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division, at No. 3644 January Term, 1975

COUNSEL

James E. Coyne, Pittsburgh, for appellant.

Edward O. Spotts, Pittsburgh, for appellees.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Cercone

[ 274 Pa. Super. Page 194]

On January 30, 1974, the decedent, Tiffany R. Slavin, two and one-half years of age, was a passenger in her mother's automobile when it was involved in a fatal collision with defendant's vehicle resulting in the instantaneous death of Tiffany. Decedent's parents (appellees herein) instituted wrongful death and survival actions against the original defendant (appellant herein) who joined the decedent's mother as an additional defendant. The case was tried before a jury and a verdict was returned against both appellant and the additional defendant in the amount of $834.50 in the wrongful death action and $75,000.00 in the survival action. This appeal is from the order of the court below denying appellant's motion for a new trial and directing that judgment be entered on the verdict.*fn1

Appellant contends, as he did in the court below, that there was insufficient evidence for the jury to assess damages on the survival action and that the award of $75,000.00 was excessive.*fn2 Upon review of the entire record and the briefs and arguments of counsel, we are convinced that the lower court did not err in denying appellant's motion for a new trial.

[ 274 Pa. Super. Page 195]

The evidence presented by appellees regarding the future loss of earnings under the survival action was as follows. Decedent was a two and one-half year old girl, in excellent health, of normal intelligence, and with a life expectancy of 75 years. Decedent's mother testified she had three other children, all in good health, who ranged in age from ten to two. With respect to her own background and work record, Mrs. Slavin stated that she was thirty-five years of age and in good health; that upon graduating from high school she worked at a ceramics plant as an unskilled worker where she earned the minimum wage and received several pay increases during her three years of employment there; that she left this job to get married, and after four years of marriage she temporarily returned to work, again as an unskilled worker, where she worked for two months at a wage she could not recall. Mrs. Slavin further testified that although she had not worked since the last mentioned job, she hoped to resume working once her youngest child started school. Lastly, Mrs. Slavin stated that she expected her deceased child to have eventually attended college.

Mr. Slavin confirmed his wife's testimony with respect to the health, intelligence, and disposition of his deceased daughter. He also joined in his wife's expectation that their child would have attained a college degree. With respect to his background and employment record, Mr. Slavin testified that he was a high school graduate and in excellent health. After graduating high school, Mr. Slavin entered the service where he received training in electronics. Upon his discharge from the service, Mr. Slavin began a career in various technical jobs culminating in his present position as a sales engineer for an electronics firm earning $1,600.00 per month. Finally, Mr. Slavin testified that his two school age children were doing average to slightly above average in school.

In Smail v. Flock, 407 Pa. 148, 154, 180 A.2d 59, 61 (1962), the court pertinently observed:

The measure of a decedent's loss is what he "would have probably earned by his ...


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