Frankel v. Todd

• Decision Date: 25 October 1966
• Docket Number: Civ. A. No. 31985.
• Citation: 260 F. Supp. 772
• Parties: Alvin H. FRANKEL, Guardian of the Estate of Nydia Pasceri, a minor v. John H. TODD, Jr. and Grayson Moore, Jr.
• Court: U.S. District Court — Eastern District of Pennsylvania

260 F. Supp. 772

Alvin H. FRANKEL, Guardian of the Estate of Nydia Pasceri, a minor v. John H. TODD, Jr. and Grayson Moore, Jr.

Civ. A. No. 31985.

United States District Court E. D. Pennsylvania.

October 25, 1966.

B. Nathaniel Richter, Philadelphia, Pa., for plaintiff.

Peter P. Liebert, 3rd, Philadelphia, Pa., for defendants.

OPINION

LUONGO, District Judge.

On May 13, 1961, Nydia Pasceri, 19 years of age, was a passenger in an automobile operated by defendant when it ran off the road and plunged over an embankment. Miss Pasceri sustained serious injuries including a fractured pelvis and a ruptured bladder. An out-of-state guardian was duly appointed for the minor and suit was instituted in this court based on the resultant diversity of citizenship. The case was tried in May 1966, and the jury returned a verdict in the amount of $25,000 in favor of the guardian. Dissatisfied with the size of the verdict, the guardian seeks a new trial and urges, as grounds, that:

1. The Court erred in refusing to submit to the jury impairment of earning capacity as an element of damage.

2. The Court abused its discretion in refusing to postpone the trial.

3. The Court erred in refusing to permit plaintiff to present testimony as to a certain claimed disability resulting from injuries sustained in the accident.

4. The Court erred in refusing to allow the guardian to recover medical and hospital expenses.

5. The verdict was inadequate.

Each of the grounds has been considered carefully and will be discussed briefly. Since all lack merit the motion for new trial will be denied.

1. Impairment of Earning Capacity.

Among the injuries sustained by Miss Pasceri were fractures of several of the pelvic bones. The healing of the fractures resulted in a distortion of the pelvic ring, shifting the right side upward leaving the crest of the right hip approximately one-half inch¹ higher than the left. The deformity of the hip is permanent and cannot be corrected.

In essence, it is plaintiff's contention that proof of permanent injury, without more, requires submission of impairment of earning power to the jury. The cases he has cited hold only that, even in the absence of actual loss of earnings, the injury and the resultant disabilities may nevertheless establish impairment of earning power for which the injured person is entitled to be compensated.

Thus, in Bochar v. J. B. Martin Motors, Inc., 374 Pa. 240, 97 A.2d 813 (1953), the injured person was a telephone repairman with a permanent 25-30% limitation of motion of the knee. There was evidence that when he returned to his employment he was unable, because of his semi-frozen knee, to perform his duties fully, and that in an important part of his work, tracing "stuck" calls, he was able to do only one-half the amount of work performed by the average man in the industry because of the amount of bending required. There was also evidence of specific loss from inability to do overtime work. On that proof it was held proper to permit the jury to consider whether his economic horizons had been shortened because of the injuries.

To the same effect: Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960) where evidence of permanent skull injury causing severe headaches and memory deficiency; leg injury causing pain upon prolonged standing; inability to perform former duties as a guard; and inability to drive an automobile were held to be sufficient evidence of limitation of economic horizons for submission of impairment of earning power to the jury, notwithstanding higher earnings after the accident; and City of Philadelphia v. Philadelphia Transportation Co., 400 Pa. 315, 162 A.2d 222 (1960), in which permanent injury to a policeman's legs, making it impossible for him to run and interfering with his ability to lift (precluding assignment to duty on an emergency patrol wagon), was held sufficient evidence of inability to perform duties to warrant submission of the issue of impairment of earning power to the jury.

A further illustration of the same principle is found in Yeager v. Anthracite Brewing Co., 259 Pa. 123, 102 A. 418 (1917), in which plaintiff, an engineer in a brewery, as part of his duties was required to perform certain physical tasks. The accident in question caused tearing of the muscles and muscle fibres of his arm causing severe and permanent injury to it. Although plaintiff's earnings after the accident were the same as before, there was evidence that his strength was substantially impaired and he was permanently unable to do as much or as heavy physical labor as he had been able to do before the accident. It was held that the jury could find from that evidence that plaintiff could be compelled in the future to accept less remunerative employment than if he had not been injured.

There was no comparable proof in this case. When this accident happened, Miss Pasceri was a student at East Stroudsburg State Teachers College. Despite seven weeks hospitalization she was able to graduate in the normal time. From the time of graduation until the time of trial she had been employed full time as an elementary school teacher. She has not been disabled in the performance of any of her duties, although, as she stated, she has been inconvenienced by the hip deformity in that she is slower down somewhat in getting around the room to help the children and her back aches and causes her discomfort. One of her medical witnesses testified that if she does not wear a lift in the right shoe, as times goes on the uneven strain on the back muscles will cause the pain in the low back to remain. There was no medical testimony that, even without a lift in the shoe, the pain in the low back would at any time in the future increase to a degree which would interfere with the performance of Miss Pasceri's duties as a teacher. She was, at the time of trial, performing and apparently will be able to continue to perform in the future, full time duty as a teacher, although perhaps with some discomfort. Beyond that, Miss Pasceri is relatively small in stature, standing just under five feet tall and weighing less than ninety pounds. Plaintiff presented no evidence from which the jury could properly conclude that Miss Pasceri's hip deformity will restrict her ability to perform other types of work which, considering her age, physical characteristics, education and training, she would have been likely to do, but for the injury, for the rest of her life. See Restatement, Torts § 924, comment (d) (1939). It is plaintiff's burden to establish impairment of earning capacity by a preponderance of the evidence. The proof on that issue was so lacking here that the jury would have been left entirely to guess and speculation to find and assess such impairment. This would have been improper. See Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923 (1944) and cases therein cited.

2. Abuse of Discretion in Refusal to Postpone Trial.

As earlier noted, the accident happened May 13, 1961. The case was called for trial and a jury selected late in the afternoon of May 25, 1966. Following the selection of the jury, counsel met with the trial judge in chambers. There was a lengthy discussion of the case during which settlement was discussed, but unsuccessfully. The meeting lasted until about 5:30 p. m. On that evening plaintiff's counsel apparently had Miss Pasceri examined by a neurologist and, on the morning of May 26, counsel reported that the neurologist "left word this morning with my office that this girl has a severe postconcussional picture, which is the result of a contusion of the brain, rather than a concussion, and that she needs extensive medical care in that respect." (N.T. 4) Counsel thereupon made application for a postponement of the trial until the fall to permit full exploration of alleged organic brain damage which had not theretofore been claimed, mentioned or suggested. Until then, in pleadings, in pretrial discovery and in the pretrial memorandum, plaintiff had described Miss Pasceri's injuries as a ruptured gall bladder and fractures of the pelvis with permanent hip deformity such as to interfere with and probably prevent childbirth and that Miss Pasceri had been advised that she would not be able to give a normal childbirth. In an amended pretrial memorandum filed on February 14, 1966, the day the pretrial conference was held, there was an intimation of possible emotional involvement when plaintiff listed as a witness "An expert psychiatrist to be named later." On that same date a Pretrial Order was entered which, inter alia, granted permission to defendant to have Miss Pasceri examined within thirty days from the date of the order. No psychiatrist was ever named by plaintiff and, as a consequence, defendant did not have Miss Pasceri examined by a psychiatrist.

Viewed against this background the request for postponement to pursue a completely new claim, brain damage, came entirely too late and was unreasonable. There were no new or unforeseen developments. The severity of the impact, the nature of the injuries sustained, and the symptoms, such as they were, had been known and had remained fairly constant over the period of five years during which Miss Pasceri was undergoing examination by many specialists in preparation for trial.² No reason appears why the brain damage, if it existed, had not been discovered and disclosed prior to trial. To have granted the request for postponement under such circumstances would have constituted an abuse of discretion.

3. Refusal to Permit Testimony as to Inability to Conceive.

Plaintiff contends in his brief that the court excluded testimony relating to Miss Pasceri's inability to carry a fetus through a normal nine months pregnancy as well as testimony indicating inability to conceive at all. There is no question that testimony relating to the former was admitted (e. g. see N.T. 294) and in fact, at counsel's request, that matter was specifically brought to the...