McPherson v. Pittsburg Railways Co.

50 Pa. Super. 233, 1912 Pa. Super. LEXIS 33

• Court: Superior Court of Pennsylvania
• Decided: May 13, 1912
• Docket: Appeal, No. 168
• Status: Published

Opinion

Per Curiam,

Where loss of earnings constitutes the. only element of the damages claimed by the plaintiff, there would be force in the contention that full compensation would include damages for the detention from the time of the loss to the time of trial. But in this case the loss of earnings was a very inconsiderable element of the damages claimed. As the learned counsel for the appellant well say, there never was a time when their client could have separated the several elements and have settled with the plaintiff or made him a tender for any one of them; neither the whole claim, nor any of its elements were ever liquidated, so that any tender could have been made, except a tender of the whole amount demanded, which was fixed in the plaintiff’s statement at $20,000 — a sum grossly in excess of the damages which the jury found he sustained. Generally, such discrepancy is a pertinent consideration, in determining whether compensation for delay in the payment of damages arising out of tort should be awarded: Pierce v. Lehigh Valley Coal Co., 232 Pa. 170; and we think it a pertinent consideration in the determination of the question raised by the single assignment of error in the present case. Moreover, it was declared by the Supreme Court in the recent case of McGonnell v. Pittsburg Rys. Co., 234 Pa. 396, that “in a personal injury case the damages are assessed as of the date of the trial and not of the injury; hence, there can be no general compensation for delay.” It is true an additional reason was given for sustaining the assignment of error there under consideration, but as we understand the opinion it would have been sustained if that additional reason had not existed. Therefore, the decision, if not absolutely controlling upon the question whether compensation for delay may be awarded as to some elements of the damages, certainly tends strongly in that direction. We conclude, upon the whole, that it suggests the rule that was applicable to this case, and therefore the assignment is sustained. But according to a calculation made by appellee’s counsel, to the correctness of which appellant’s counsel assent, the maximum amount of interest which the jury could have awarded under the judge’s charge was $99.36, and the appellee’s counsel express their willingness to remit that amount, in the event of our determination that the instruction was erroneous. Therefore the conclusion reached by us will not necessitate a retrial of the case: Emerson v. Schoonmaker, 135 Pa. 437.

The sum of $99.36 is deducted from the amount of the verdict, as of the date it was rendered, thus reducing the same to $1,300.64, and the judgment as thus corrected is affirmed.