I dissent from the decision in this case for the following reasons:
1. The majority opinion characterizes the discussion inPezzulli, Administrator, v. D'Ambrosia, 344 Pa. 643,26 A.2d 659, as "dictum". That case, being the first to reach this Court after the enactment of the new Survival *Page 77 Act of July 2, 1937, P. L. 2755, called for an interpretative study of that statute, particularly in regard to the proper measure of damages in suits thereunder and in order to avoid a possible duplication of damages with those recoverable under the Death Act of April 15, 1851, P. L. 669, section 19. I do not think that any opinion rendered by our Court ever received from it more careful and earnest consideration. It was unanimously agreed by us that the view taken by the court below en banc was wrong and that the instruction given to the jury by the trial judge was also wrong in that it was less favorable to the plaintiff than that to which he was entitled; we affirmed the judgment only for the reason that the plaintiff, although vigorously contending that the charge to the jury was erroneous, was willing to accept the verdict that had been rendered in his favor; the opinion clearly indicated that he would have been awarded a new trial had he desired it.
2. If, under such circumstances, the rule there enunciated is technically to be regarded as dictum, the fact nevertheless remains that in the six years since that case was decided, not only has it been cited many times in our own reports and those of the federal courts, but we have sustained verdicts and judgments entered thereon in a number of subsequent cases in which the trial judge had followed the rule in regard to the measure of damages laid down in the Pezzulli case and in which alleged excessiveness of the verdict was directly in issue. Even if, therefore, it be true that the rule adopted in thePezzulli case was dictum, later cases have converted it into a firmly established principle, and undoubtedly scores, if not hundreds, of cases have been tried in the lower courts in accordance with it.
3. Of much greater importance, however, as far as the doctrine of stare decisis is concerned, is the fact that by the present decision we are overruling not only the rule of thePezzulli case and the cases which have followed it, but law which has been in force in Pennsylvania *Page 78 for the past 97 years. The Survival Act of 1937 provides that "Executors or administrators shall have power . . . to commence and prosecute . . . all personal actions which the decedentwhom they represent might have commenced and prosecuted . . ." It is thus crystal clear — and it was so held not only in thePezzulli case but also in Stegner, Administrator, v. Fenton,351 Pa. 292, 40 A.2d 473 (see also Piacquadio, Trustee, v.Beaver Valley Service Co., 355 Pa. 183, 185, 49 A.2d 406, 407) — that the action thus authorized is the same as that which the deceased might have commenced in his lifetime and his executor or administrator have continued after his death by authority of the survival section (section 18) of the Act of 1851. It is therefore governed, of course, by the same measure of damages;1 indeed this is not challenged in the majority opinion. What the present decision must do, therefore, in order to justify itself, is to reverse the rule as to the measure of damages in cases under section 18 of the Act of 1851, for that is the rule that was followed in the Pezzulli case. Apparently recognizing this, the majority opinion, while it avoids referring to any of the long line of cases which it is in fact overruling, simply states that "In the trial of an action by an injured person, the jury is instructed to find . . . the loss of earning power. . . . But if such a plaintiff dies, and his action is brought to trial by his administrator . . . his administrator should . . . not receive anything for his maintenance during *Page 79 that period [of his life expectancy]; he should receive only the loss of earning power less cost of maintenance. . . ." The trouble with that declaration, however, is that it does not represent, and never has represented, the law of Pennsylvania; on the contrary, from the very first case decided under section 18 of the Act of 1851 down to the latest, every decision of this court has held that, where the victim of an accident brings a suit but dies before trial and his executor or administrator continues the action, the measure of damages is the same as that to which the deceased would have been entitled had he survived, namely, the economic value of his life as measured by the present worth2 of his likely earnings during the period of his life expectancy: Pennsylvania R. R. Co. v.McCloskey's Administrator, 23 Pa. 526; Maher, Administrator, v.Philadelphia Traction Co., 181 Pa. 391, 397, 398, 37 A. 571,572; McCafferty, Administrator, v. Pennsylvania R. R. Co.,193 Pa. 339, 346, 44 A. 435, 436; Kaczorowski v. Kalkosinski,Administrator, 321 Pa. 438, 441, 184 A. 663, 664; Liguori,Administrator, v. Philadelphia, 351 Pa. 494, 502, 503,41 A.2d 563, 566, 567; McCullough, Administrator, v. Philadelphia, *Page 80 Newtown New York R. R. Co., 81 Pa. Super. 318; see alsoKriesak v. Crowe, 36 F. Supp. 127, 129; also comment in 7 A.L.R. 1358, 1359; also 43 Dickinson Law Review, 107, 108; cf.Paul v. Atlantic Refining Co., 304 Pa. 360, 156 A. 94. I venture to state (certainly it is true to the best of my knowledge and belief) that no judge in Pennsylvania has ever charged a jury in a case under section 18 of the Act of 1851 that in estimating the damages there should be a deduction equal to the probable expenses of the deceased plaintiff had his life not been destroyed by the accident. The present decision, therefore, not only overrules the Pezzulli and subsequent cases under the Survival Act of 1937, but also all the cases under the survival section (section 18) of the Act of 1851, the measure of damages under both statutes being admittedly identical. If, in order to avoid such a drastic overturning of a century's decisions, an attempt were now made to establish, in the teeth of the plain wording of the Act of 1937, a smaller measure of recovery under that Act than under section 18 of the Act of 1851, such an escape would be merely from Scylla to Charybdis, for the wholly deplorable consequence would be to restore the practice which prevailed before the Act of 1937 of an unseemly race to the prothonotary's office to have a writ issued before the victim of the accident passed away so as to reap the fruit of a larger measure of damages.
4. In the legal field of statutory construction it has frequently been asserted that if, after judicial interpretation has been given to a statute, the legislature does not amend the act, it must be assumed that the construction placed upon it by the court correctly represented the legislative understanding of the intended meaning of the statute and its desired effect. There have been three sessions of the legislature since the opinion in the Pezzulli case was handed down and no amendment has been enacted, so that the rule there established presumably *Page 81 construed the Act of 1937 in accordance with the intent of the legislature.
5. The majority opinion cites cases from other jurisdictions apparently supporting the rule in regard to the measure of damages which the present decision seeks to introduce under our own Act of 1937. Those cases, however, are of no persuasive value whatever, and the same observation would be equally true of cases that might readily be cited from other jurisdictions which follow the Pezzulli rule. The reason is that the wording of the death and survival statutes varies greatly in the different jurisdictions and each decision concerning them must be weighed in connection with the phraseology of the statute which it interprets; some States have only a death statute and not a survival statute at all and others construe their survival statutes, by reason of their particular phrasing, as performing the function of death statutes by providing for damages to the relatives of the deceased; in such cases, of course, it is the net earnings of the deceased which alone could be enjoyed by the family. It is properly pointed out in appellee's brief that this applies especially to the Rhode Island, North Carolina and New Hampshire cases cited in the majority opinion. But our Pennsylvania Survival Act of 1937 is so clear in stating that an action instituted under it is the same action which the deceased might have commenced and prosecuted in his lifetime that there is no room left for the adoption of any rule of damages other than the one which, as already pointed out, has existed in Pennsylvania for close on to one hundred years.
6. The fact that the legislature enacted the Survival Statute of 1937 shows clearly that it did not consider that the Death Act of 1851 (section 19) furnished an adequate remedy in cases where a person was killed by the wilful act of negligence of a tortfeasor since it covered only that part of his earnings which he had been applying to the support of his family and did not provide for the loss which he himself suffered, namely, the *Page 82 part of his earnings which he would have been able to spend for his own benefit had his life not been tortiously destroyed. But under the present decision the Survival Act will, in an overwhelming majority of cases, not allow of any such additional recovery at all, since it is only a small number of persons who can accumulate estates or, in other words, who enjoy an income in excess of their living expenses. It is not strange, for example, that in the case in the Federal court (before the decision in the Pezzulli case) in which an obviously intelligent and conscientious jury were instructed to return a verdict measured by the net earnings of the victim, they found against the defendant but awarded no damages to theplaintiff under that test; (Voelkel v. Bennett, 115 F.2d 102). The present decision, to my mind, defeats the very purpose of the Act of 1937.
7. The rule laid down in the Pezzulli case has not worked unfairly or unsatisfactorily. Although in the six years since the rule was adopted a multitude of cases must have been tried in Pennsylvania involving its application this Court has had occasion in only a single instance to reduce a verdict rendered in accordance with it; (Vincent, Administrator, v.Philadelphia, 348 Pa. 290, 35 A.2d 65). And even if occasionally such a verdict were excessive, as happens now and then in all kinds of negligence cases, the court always has control over it and could reduce it to a proper amount.3
8. I believe it is wholly impractical, not to say impossible, for a jury to determine the likely living expenses of a person killed in an accident if the victim happens to be a child or a young man or woman, it being obvious that such expenses would necessarily depend on his habits and tastes as he advanced to maturer age, on the scale of living which he might adopt, on whether or not he would marry and have children, on whether *Page 83 he would have other family obligations, etc. Thus there is now being introduced into the law a factor the application of which must necessarily be unscientific and arbitrary and which will serve only further to confuse the determination of verdicts in such cases.
9. I think that a rule of law is immoral and therefore indefensible which makes it more financially advantageous for a tortfeasor to kill than merely to injure an innocent victim. Under the rule established by the present decision, killing an ordinary wage-earner, especially if unmarried, would probably cost the tortfeasor an extremely small sum if anything, whereas only injuring such a person would result in a larger award of damages since in that event his living expenses would not, of course, be deductible from the amount of his recovery. Surely such a state of the law would justly merit the reproach that it makes the destruction of human life less costly to the wrongdoer than would have been the case if the victim of the accident had merely been maimed.
10. It seems to me that the present decision results from a confusion between a rule which is appropriate when damages are claimed for the death of another person and when they are claimed for one's own death. In the former event, as where parents claim for the death of a child, or a wife for the death of her husband, the rule, of course, should be, and is, that recovery can be had only out of net earnings; the question there is: what is the economic value of the life of the deceased to the claimant? But under the Survival Act of 1937 the recovery is not for the benefit of the deceased's relatives; since it is the same action which he himself could have brought in his lifetime the recovery is for the damages which he personally has sustained by being deprived of his life; the question then is: what is the economic value of the life of the deceased to himself? And while it is true that, if he had lived, he would have been obliged to use his earnings for eating, sleeping under shelter, *Page 84 recreation and amusements, such outlays, though in one sense expenses, constitute in and of themselves the very functions of life itself, — the sole purpose, indeed, for which earnings are sought as the recompense of labor. If the argument be valid that living expenses should be deducted because the deceased infact escapes the necessity of paying them due to his enforced death, then logically no recovery at all ought to be allowed under the Survival Act of 1937 since the deceased would neverin fact be able to utilize even the surplus, if any, of his earnings over his expenditures which the present decision would grant to him.
11. Finally, the present decision seems to me to be undesirable on the basis of social considerations, because it drastically diminishes the amount of the recovery which might inure to the benefit of the family of an ordinary breadwinner and thereby works a much greater hardship on them than the application of the rule would entail in the case of persons fortunate enough to have incomes greatly in excess of their costs of living.
Because, therefore, of what I regard as compelling reasons — practical, logical, moral and social — as well as because the present decision involves the overthrowing of a century of established law, I must respectfully dissent both from it and from the opinion written to support it.
1 It was said in the Pezzulli case, p. 648, A. pp. 661, 662: "During the interval, however short, which elapses between the occurrence of the accident and the death of the injured person . . . there accrues to him a cause of action, because of the injury inflicted upon him, which entitles him to recover, if he has time in which to bring the suit, the present worth of his loss of earning capacity during his life expectancy. It is this cause of action which passes by the act of 1937 to his personal representative. Why, therefore, should there be any different measure of damages if, because of the severity of his injury and the consequent onrush of death, a writ is issued, let us say, a moment after, instead of a moment before, his death occurs?"
2 Incidentally, the majority opinion states that in reducing the amount recoverable to its present worth the reduction should be on the basis of the legal rate of interest, citing in support of this pronouncement Windle v. Davis, 275 Pa. 23, 29,118 A. 503, 505. That case cites as its authority 17 C. J. 906, which in turn refers solely to the case of Central of Georgia Rwy.Co. v. Mosely, 112 Ga. 914, 38 S.E. 350. I cannot see any logical connection whatever between the maximum rate of interest which the law allows a creditor to charge and the amount of return which an investor can obtain on reasonably safe securities. The effect of the rule now being laid down is not only unrealistic (for everyone knows that any proceeds that may be recovered in this case cannot be safely invested on the basis of a 6% return) but it sharply diminishes the amount recoverable no matter which rule as to the measure of damages be adopted. It seems to me obvious that the discount computation should be made in accordance with the actual earning power of money, namely, the current rate of return on sound investment; see Restatement, Torts, § 924, comment d.
3 In conformity with the action taken by the court in theVincent case the verdict under the Act of 1937 in the present case might properly be reduced to $7000.