Edward W. Eichmann, Administrator of The Estate of Harry J. Lobnitz, JR., Deceased v. Richard P. Dennis, 347 F.2d 978, 3rd Cir. (1965)
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Scribd Government DocsEdward W. Eichmann, Administrator of The Estate of Harry J. Lobnitz, JR., Deceased v. Richard P. Dennis, 347 F.2d 978, 3rd Cir. (1965)
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Scribd Government Docs347 F.
2d 978
Edward W. EICHMANN, Administrator of the Estate of Harry
J. Lobnitz, Jr., Deceased, Appellant,
v.
Richard P. DENNIS.
No. 14845.
United States Court of Appeals Third Circuit.
Argued March 2, 1965.
Decided July 12, 1965.
COPYRIGHT MATERIAL OMITTED Roland J. Christy, Melrose Park,
Pa., for appellant.
Gordon W. Gerber, Philadelphia, Pa., for appellee.
Before BIGGS, Chief Judge, and FORMAN and SMITH, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
This action, under the Wrongful Death Act of Pennsylvania, 12 P.S. 1601
and 1602, was brought on behalf of the parents of the decedent.1 The first trial
resulted in a directed verdict and judgment in favor of the defendant
Commercial Concrete Company, Inc.,2 and a jury disagreement as to the
defendant Dennis. The second trial resulted in a verdict and judgment in favor
of the defendant Dennis. The present appeal is from this judgment; the plaintiff
does not challenge the judgment entered in favor of the Company in the earlier
trial.
The decedent, while lawfully on the premises of the Company, his employer,
was fatally injured when he was struck by a truck which was backing into a
loading area designated in the record as a "batching station." At the time of the
accident the truck was being driven by the defendant Dennis, a fellow
employee of the decedent. We find upon review of the record that the evidence
was sufficient to justify submission of the issue as to the defendant's negligence
to the jury. Hronis v. Wissinger, 412 Pa. 434, 194 A.2d 885 (1963); Lacaria v.
Hetzel, 373 Pa. 309, 96 A.2d 132 (1953); Caulton v. Eyre & Co., 330 Pa. 385,
199 A. 136 (1938). The same may not be said of the evidence upon which the
defense of contributory negligence rested.
3
The decedent must be presumed to have exercised reasonable care for his own
safety; he must be presumed to have observed for his own protection those
rules which would have been observed by a reasonably prudent person under
the same or similar circumstances. Keasey v. Pittsburgh & Lake Erie Railroad
Company, 404 Pa. 63, 170 A.2d 328 (1961); Newsome v. Baker, 395 Pa. 99,
148 A.2d 906 (1959); Moore v. Esso Standard Oil Co., 364 Pa. 343, 72 A.2d
117 (1950). The burden was upon the defendant to overcome the presumption
by a fair preponderance of evidence. Ibid. This he failed to do. There was no
evidence whatever that the decedent was at a place where he had no right to be
or that he violated the ordinary rules of safety. The argument of the defendant
to the contrary rests solely on conjecture.
Notwithstanding this absence of evidence, the trial judge, in accord with
written requests submitted by the defendant, instructed the jury at length on the
issue of contributory negligence. This was reversible error. Morran v.
Pennsylvania Railroad Company, 321 F. 2d 402 (3rd Cir. 1963); O'Neill v.
Reading Company, 306 F.2d 204, 206 (3rd Cir. 1962) and the cases therein
cited; Miller v. Montgomery, 397 Pa. 94, 152 A.2d 757 (1959). In the absence
of sufficient evidence on the issue of the decedent's contributory negligence the
submission of the issue to the jury was improper. Ibid.
The trial errors hereinafter discussed must be considered in the light of the law
of Pennsylvania as to the right of recovery and the measure of damages in an
action for wrongful death. The right of recovery is established by the statutes,
supra. The damages recoverable are measured by the pecuniary loss, or the loss
of a reasonable expectation of pecuniary advantage, suffered by the next of kin
on whose behalf the action is brought. Curnow v. West View Park Company,
337 F.2d 241, 242 (3rd Cir. 1964); Frazier v. Oil Chemical Company, 407 Pa.
78, 179 A.2d 202, 208 (1962); Gerhart v. East Coast Coach Co., 310 Pa. 535,
166 A. 564, 565 (1933). Neither the right of recovery nor the measure of
damages is conditioned on actual dependency, either total or partial.
The plaintiff offered in evidence the decedent's income tax return for the
calendar year 1954, prepared by his father for the limited purpose of proving
the amount of the decedent's earnings in the said year. This document was selfserving but, in the absence of objection, receiving it was not error. However,
there was error in the misuse the trial judge permitted the defendant to make of
it, over the objection of the plaintiff. The defendant relied upon the return as
evidence that the father, who had failed to claim dependency deductions
allowable under 151 (e) (1) (A) of the Internal Revenue Code, 26 U.S.C.A.,
was admittedly not a dependent within the meaning of the statute. The
evidence, as related to the issue of dependency, was clearly irrelevant and
prejudicial in this action. In fact, the plaintiff was entitled to a binding
instruction as to the limited purpose for which the return was offered.
7
The relevant provisions of the Workmen's Compensation Act, 77 P.S. 561,
reserves to the parents, under the conditions prescribed in subdivision 5, a right
to dependency benefits where, as here, the death of a son has resulted from an
accidental injury suffered in the course of employment. The right to such
benefits is conditioned upon actual dependency, either total or partial. Di
Campli v. General Electric Company, 193 Pa.Super. 427, 165 A.2d 255, 257
(1961); Dindino v. Weekly Review Publishing Company, 188 Pa.Super. 606,
149 A.2d 475, 477 (1959). The defendant was allowed to prove by the
testimony of the decedent's father,3 received over the objection of the plaintiff,
that the parents had failed to file a claim for dependency benefits. The receipt of
this evidence was reversible error. See Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d
557 (1962); Boudwin v. Yellow Cab Company, 410 Pa. 31, 188 A.2d 259, 261
(1963); Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 154 A.2d 399,
403 (1959). The evidence was clearly irrelevant and its introduction must be
regarded as prejudicial. Ibid.
Pursuant to the written request of the defendant, the trial judge instructed the
jury as follows:
"Under the workmen's compensation law of the Commonwealth of
Pennsylvania, the decedent not having been survived by either a widow or
children, then his father or mother, `if dependent to any extent upon the
employee at the time of the accident' would be entitled to receive such
compensation. * * * If you get to the question of whether Harry Lobnitz, Sr.
was in fact financially dependent, to any extent, on his son, you may consider
the fact that he did not file any such claim under the workmen's compensation
laws. In this regard, you may also consider the fact that in preparing the 1954
federal income tax return for the decedent, Harry Lobnitz, Sr. did not list
himself nor any other person as a dependent of the decedent." (Emphasis
supplied.)
10
These instructions were clearly erroneous and served only to compound the
errors committed in the admission of the evidence hereinabove discussed.
11
These instructions definitely conveyed to the jury the concept that the parents
of the decedent, if dependent, had a right of recovery against the employer
under the workmen's compensation laws. This, of course, was irrelevant and
prejudicial. It is well settled that a tortfeasor, here the truck driver Dennis, may
not be relieved of liability merely because those entitled to recover also could
have recovered from a source other than the wrongdoer. Lobalzo v. Varoli,
supra; Moidel v. Peoples Natural Gas Company, supra, and the cases therein
cited. The instructions further conveyed to the jury the concept, which
permeated the trial, that the right of recovery in this action was conditioned
upon proof that the decedent's parents were actually dependent. This, as we
hereinabove noted, is not the law of Pennsylvania.
12
The defendant argues that reversal of the judgment is not warranted because the
errors were harmless. This argument rests on the contention that the jury verdict
was predicated upon a determination that the defendant Dennis was not
negligent. There is nothing in the record to support this contention. The jury
returned a general verdict from which the basis of their decision is not
ascertainable.
13
The verdict, viewed in light of the evidence erroneously admitted and the
erroneous instructions, could have been predicated on any one of several
determinations: (1) that the defendant was not negligent; (2) that the decedent
was guilty of contributory negligence; (3) that the accident was caused by their
concurrent negligence; (4) that the parents' right of recovery was solely against
the employer under the workmen's compensation law; or (5) that the parents
were not dependent and were therefore not entitled to recover. We cannot
speculate as to the basis of their decision.
14
This case and others which have been before us emphasize the advisability of
submitting issues to the jury on special interrogatories as authorized under rule
49 of the Fed.Rules Civ.Proc., 28 U.S.C.A. (Charles T.) McCormick, Jury
Verdicts Upon Special Questions in Civil Cases, 2 F.R.D. 176; (Edson R.)
Sunderland, Verdicts General and Special, 29 Yale L.J. 253; (Jerome) Frank,
Courts on Trial, 141-143. The special verdict, whether used independently or in
conjunction with the general verdict, has several advantages: (1) it enables the
trial judge to frame the issues and to relate his instruction to those issues; (2)
the instructions as thus related to the issues serve as a more informative guide
to the jurors; (3) any confusion in the minds of the jurors from a
misunderstanding of the law or its application is readily detected; (4) the
tendency of the less conscientious juror to concur in a compromise verdict is
minimized; (5) the trial judge is enabled to ascertain the basis of the jury's
decision and, if erroneous, to take such measures as may be necessary to correct
the verdict.
15
The judgment of the court below will be reversed and the action will be
remanded with directions that a new trial be ordered.
Notes:
1
The complaint included also a claim under the Survival Act, 20 P.S. 320.601
The sole remedy of the decedent's next of kin against the Company was under
the Workmen's Compensation Act
The father testified at the first trial but died before the second trial. A transcript
of the testimony was offered in evidence
