Slavin v. Gardner

418 A.2d 361, 274 Pa. Super. 192, 1979 Pa. Super. LEXIS 3487
CourtSuperior Court of Pennsylvania
DecidedDecember 28, 1979
Docket458
StatusPublished
Cited by8 cases

This text of 418 A.2d 361 (Slavin v. Gardner) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slavin v. Gardner, 418 A.2d 361, 274 Pa. Super. 192, 1979 Pa. Super. LEXIS 3487 (Pa. Ct. App. 1979).

Opinion

CERCONE, President Judge:

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. 1

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. 2 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.

*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 intellectual or bodily labor in his *196 business or profession during the residue of his lifetime.” P.R.R. v. Butler, 57 Pa. 335.
How are these losses to be calculated? Obviously by the best evidence which is available. Justice BELL, now Chief Justice, said in Getz v. Freed, 377 Pa. 480, 485, 105 A.2d 102:
“In Betterman v. American Stores Co., 367 Pa. 193, at 207, 80 A.2d 66, at 74, this Court, quoting from Lach v. Fleth, 361 Pa. 340, 352, 64 A.2d 821, said (p. 207, 80 A.2d 66): ‘ “The law does not require that proof in support of claims for damages or in support of claims for compensation must conform to the standard of mathematical exactness. In Western Show Co., Inc. v. Mix, 308 Pa. 215, 162 A. 667, 668, we held that evidence in support of a claim for damages was sufficient ‘if it afforded a reasonably fair basis' for calculating the plaintiff’s loss. . If the facts afforded a reasonably fair basis for calculating how much plaintiff is entitled to such evidence cannot be regarded as legally insufficient to support a claim for compensation.’”” (Emphasis in Chief Justice BELL’S Opinion).

The problem noted by the court in Smail v. Flock, supra; namely, proof of damages in a death case, is particularly vexing where the decedent is a child of tender years. Obviously, specific projections of future income and expenses are virtually impossible where the decedent has not lived long enough to enable a definite prediction as to future occupation and life style. The courts have, however, recognized this problem and have held it unnecessary to establish with mathematical precision the future earning power of the deceased child. Hankins v. Mack, 364 Pa. 417, 72 A.2d 268 (1950); Weaver v. Ford Motor Co., 382 F.Supp. 1068 (E.D.Pa.1974), aff’d 515 F.2d 506, 507 (3d Cir. 1975). A similar rule obtains in cases involving permanent disabling injuries to minor children, because the problem is essentially the same as that in child-death cases. As the court stated in Goldberg v. P.R.T. Co., 299 Pa. 79, 85, 149 A. 104, 107 (1930): “When a child of tender age is permanently disabled, it is not neces *197 sary to prove its earning power in order to submit that question to the jury as an element of damages. This question is for the jury under all the facts and circumstances of the case.” See also Dichiero v. Pittsburgh Rys. Co., 313 Pa. 93, 169 A. 82 (1933). Similarly, in evaluating damages in child-death cases the courts have considered a variety of factors, including the decedent’s age, health, intelligence, probability of education, and the parents’ background, occupation, and station in life. See generally 2 S. Feldman, Pennsylvania Trial Guide § 33.33 (rev. ed. 1978); 20 Am. Jur., Trials pp. 547-552; 22 Am. Jur. 2d, Death, Section 147 et seq. Indeed, in Vincent v. Philadelphia, 348 Pa. 290, 292, 35 A.2d 65, 66 (1944), which was a child-death case, the court noted: “It cannot be said that plaintiffs failed to present all the evidence reasonably available in such a case to prove the probable pecuniary loss sustained.

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Bluebook (online)
418 A.2d 361, 274 Pa. Super. 192, 1979 Pa. Super. LEXIS 3487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slavin-v-gardner-pasuperct-1979.