Scott v. Curtis

• Decision Date: 12 December 1962
• Citation: 200 Pa.Super. 44,186 A.2d 403
• Parties: Richard Samuel SCOTT, Appellant, v. Dewayne CURTIS.
• Court: Pennsylvania Superior Court

Page 403

186 A.2d 403

200 Pa.Super. 44

Richard Samuel SCOTT, Appellant, v. Dewayne CURTIS.

Superior Court of Pennsylvania.

Dec. 12, 1962.

Application for Allocatur Denied Feb. 13, 1963.

Theodore A. Tenor, Beaver Falls, for appellant.

Harold F. Reed, Jr., Reed, Ewing, Orr & Reed, Beaver, for appellee.

Before RHODES, P. J., and ERVIN, WRIGHT, WATKINS, MONTGOMERY and FLOOD, JJ.

MONTGOMERY, Judge.

This is an action of trespass for personal injuries in which the appellant has recovered a verdict of $3,500. The facts concerning the automobile accident upon which this action is predicated are not in dispute and are to the effect that on June 21, 1958, the automobile of the appellee crossed the road into the lane of the appellant traveling in the opposite direction, forced the appellant's automobile to the berm of the road, and struck it there with great violence. In this accident, appellant sustained serious and painful injuries including displacement of teeth, two fractures of the lower jaw and deformity of the mandible.

Special damages, aside from vehicle damage and lost earnings, totaled $679. The vehicle damage was $660. The testimony as to lost earnings was to the effect that two and one-half months before the injury, plaintiff was laid off or furloughed from a common labor pool, while earning $2.09 an hour over a forty hour week. At the date of the accident he was drawing unemployment compensation. Appellant was recalled to work on December 17, 1958, at which time he returned, performing all the duties of his employment.

Admittedly, no testimony was produced as to other job opportunities being offered him during his disability. After the closing arguments of counsel, plaintiff (appellant) presented a written request to the judge to charge on punitive or exemplary damages which was refused. No exception to this refusal is presented in this appeal. The court charged that the plaintiff would be entitled to recover for lost wages, if, as a result of the accident, he actually lost any wages. At the conclusion of the charge to the jury, the trial judge addressed inquiries to both counsel asking if either of them had any further matter to bring to his attention. Both replied in the negative. Counsel for the plaintiff (appellant) did not take a special exception to any portion of the lower court's charge, nor did he take a general exception to the charge.

Subsequent to the jury's verdict, the appellant filed a motion for a new trial, which he supplemented with an additional reason after the testimony had been transcribed. This assignment of error is related to that portion of the trial judge's charge to the jury concerning the elements of damage. The court en banc refused the motion for a new trial and this appeal followed.

The appellant contends that the portion of the trial judge's charge to the jury concerning damages constituted fundamental error in that it did not cover 'earning capacity', and virtually directed the jury to consider only wages actually lost. We find no merit in this contention. The charge of the trial judge accurately summarizes the testimony produced by the plaintiff at the time of the trial. There is no complaint of any impairment of earning power other than he was totally incapacitated for six months following the accident. At the time of the trial and for almost three years prior thereto, the appellant had been fully restored to his employment. The trial judge did not limit the appellant's recovery to wages which he might have lost from his former employment from which he had been temporarily laid off. Under the charge the jury was to consider 'whether or not he [the appellant] actually lost any earnings by being unable to work during the...