McLaughlin, Kalodner and Hastie, Circuit Judges. Kalodner, Circuit Judge (dissenting).
McLAUGHLIN, Circuit Judge.
This is a suit under the Pennsylvania Wrongful Death Act by the widow of Walter Davis for the death of the latter. Davis was twenty-nine years old on the date of his death, April 30, 1963. Plaintiff remarried later that same year to a Mr. Gurley.
Apparently the only part of the trial testimony that was transcribed was that of Mrs. Gurley and Thomas L. Posey, the latter a beauty shop proprietor whose evidence dealt with damages. There is no appearance on behalf of defendant-appellee. As the trial court stated in its memorandum re plaintiff's motion for a new trial as to damages "Davis had been in and out of mental hospitals during the last few years prior to his death." Mrs. Gurley testified that he had only returned from reconfinement in Mayview Hospital a week prior to his death. She said that there were efforts made after that by her and his parents to have him recommitted.
It is conceded that on the afternoon of April 30, 1963, Davis entered defendant's bar in the City of Pittsburgh; that he ordered a drink and created a disturbance within the bar by throwing a chair and other pieces of furniture and in general, bothering the customers; that there was a scuffle between him and the proprietor defendant; that the latter took a revolver from behind the bar "which he discharged twice in an attempt to frighten away the decedent." The third shot struck Davis and caused his death. Plaintiff's own pretrial narrative states:
" Plaintiff will show that defendant, while being threatened with serious body harm by decedent fired the shot that resulted in death." (Emphasis supplied).
The trial judge charged the jury quoting Pennsylvania decisional law:
"Before one may be justified in voluntarily ending another person's existence, it must be clear to him that he stands in mortal menace or danger of serious bodily harm." (Emphasis supplied).
The jury returned a verdict in favor of the plaintiff in the sum of $2500. There was a plaintiff's motion for a new trial on the ground of inadequacy of damages. The judge in denying that motion found that "* * * the jury could very easily have determined in view of the decedent's and the widow's manner of living and his mental condition there was but little loss financially speaking to the widow in the death of her husband." The court thought the verdict low "but that it was a verdict well within the evidence." The court also stated "It seemed obvious too that the jury compromised between no liability and a low verdict in plaintiff's favor. Such is the prerogative of a jury and in this Court's view when the evidence warrants such a verdict, it should stand. In this Court's opinion the verdict was not against the weight of the evidence * * *."
Later the issue was again before the trial judge on a petition for leave to proceed in forma pauperis. The court, in denying the petition, said "At the time the verdict was returned, I was impressed by the fact that it was well within the evidence. Upon review of the matter and considering the motion for a new trial, I came to the same conclusion. I am still of that opinion."
Our independent examination of plaintiff's testimony and that of the witness Posey reveals that the jury could very well have refused credence to substantially all of the income testimony other than the disability pension of Davis. There was no evidence of the latter's life expectancy as such. There was cogent evidence of his serious mental and physical condition.
The verdict here was low but under all the circumstances we cannot hold it inadequate as a matter of law. Clearly there was no ...