holding that the trial court did not err in admitting testimony from an employment agency proprietor who estimated the value of the decedent’s household services at $173.25 per week by applying prevailing hourly rates for comparable roles, such as hostess, seamstress, and housekeeper
How later courts described this case
- holding that the trial court did not err in admitting testimony from an employment agency proprietor who estimated the value of the decedent’s household services at $173.25 per week by applying prevailing hourly rates for comparable roles, such as hostess, seamstress, and housekeeper
- in Pennsylvania the rights of survivors in a wrongful death case are fixed at the moment of death; remarriage cannot be considered in the assessment of damages
- jury required more guidance in measuring damages [decision may be affected by Federal Rules of Evidence, Rule 703]
- failure of plaintiff to introduce such evidence results in reversal on defendant's appeal
Written by the judges who cited it.
The opinion
ALDISERT, Circuit Judge
(dissenting).
I would grant the petition for rehearing because the decision of the panel makes mandatory in diversity cases governed by Pennsylvania substantive law the introduction of actuarial evidence for the purpose of reducing future losses to present worth. In Pennsylvania courts the introduction of such evidence is permissive only. Indeed, prior to the 1964 case of Brodie v. Philadelphia Trans. Co., 415 Pa. 296 , 203 A.2d 657 (1964), its introduction had been prohibited by McCaffrey v. Schwartz, 285 Pa. 561 , 132 A. 810 (1926).
I do not recognize any federal “affirmative countervailing considerations at work here,” Byrd v. Blue Ridge Rural Elec. Coop. Inc., 356 U.S. 525, 537 , 78 S.Ct. 893, 901 , 2 L.Ed.2d 953 (1958) which would require or even justify the imposition of such a rule. Although Fed. R.Civ.Proc. 43 is designed to encourage the admission of evidence on as broad a scale as possible, I do not read this rule as making mandatory in diversity cases the reception of actuarial evidence which under state law is only permitted.
Indeed, even in federal question cases the admission of such evidence is not required. In Pennsylvania Railroad Company v. McKinley, 288 F.2d 262, 265 (6 Cir. 1961), an action under the Federal Employers’ Liability Act, the court said:
It is clear that under the rulings of [cited cases], standard annuity tables, expert evidence as to earning power of money safely invested, and like testimony would be admissible. No case, however, has been cited to us from the federal or state courts which has held that such proof is essential.
See also Caldwell v. Southern Pacific Co., 71 F.Supp. 955 (S.D.Calif.1947).
Moreover, it is at least questionable whether the panel’s decision here is reconcilable with our holding in a previous diversity case governed by Pennsylvania substantive law touching a related issue. Essential to any reduction to present worth in a wrongful death case is a determination of life expectancy. In the post-Brodie case of Tabor v. Miller, 389 F.2d 645 , 647 (3 Cir. 1969), this court stated:
While mortality tables and technical data are admissible in Pennsylvania on the issue of life expectancy, they are not required. (Emphasis supplied.)
Thus, “the absence of any evidence, such as mortality tables or expert opinion, regarding life expectancy” did not render erroneous an instruction that the jury should consider plaintiff’s life expectancy in computing damages.
The court here relies on our recent decision in Russell v. City of Wildwood, 428 F.2d 1176, 1183 (3 Cir. 1970), which required “evidence and mathematical guidance” in a diversity action even though reception of such evidence was permissible and not mandatory in a New Jersey state court. I would not, however, want to rest on the technical distinction that Tabor was a diversity case brought under Pennsylvania law while Russell was an action brought under New Jersey law. Rather, I believe that the panel’s decision in Russell is inconsistent with the essential rationale of the panel’s decision in Tabor.
Accordingly, in addition to the reasons heretofore set forth, because two decisions by panels of this court can be considered to be in conflict a rehearing be *855 fore a court en banc should be had to resolve the inconsistency.