Wyatt v. Russell

• Decision Date: 30 June 1932
• Docket Number: 227,228
• Citation: 308 Pa. 366,162 A. 256
• Parties: Wyatt v. Russell, Appellant; Wyatt, Admr., v. Russell, Appellant
• Court: Pennsylvania Supreme Court

162 A. 256

308 Pa. 366

Wyatt v. Russell, Appellant;

Wyatt, Admr., v. Russell, Appellant

Nos. 227, 228

Supreme Court of Pennsylvania

June 30, 1932

Argued May 25, 1932

Appeals, Nos. 227 and 228, Jan. T., 1932, by defendant, from judgment of C.P. Crawford Co., Feb. T., 1931, Nos. 2 and 3 on verdicts for plaintiff, in cases of Margaret E. Wyatt v C. B. Russell and J. S. Wyatt, administrator of Myron E. Wyatt, deceased, v. C. B. Russell. Affirmed.

Trespass for personal injuries to Margaret Wyatt, and for death of Myron E. Wyatt. Before KENT, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for $8,500 for Margaret E. Wyatt and for $5,000 for death of Myron E. Wyatt. Defendant appealed.

Errors assigned were various rulings and instructions, quoting record seriatim.

Judgment is affirmed in both appeals.

Walter J. McClintock, with him J. Perry Eckels, for appellant in No. 227. -- In a personal injury case it is proper for the defendant to develop, by cross-examination, that if the plaintiff or a member of her family present with her had used due diligence in procuring medical or surgical treatment her condition might have been improved, for the purpose of mitigating damages: Leitzell v. R.R., 232 Pa. 475; McCaffrey v. Schwartz, 285 Pa. 561.

When driving at an excessive rate of speed and negligence is imputed, it is proper to develop through cross-examination of the plaintiff that she had taken previous trips with the defendant, in which he drove at a much greater speed without objection by her and that in accompanying him on the present trip she assumed such risk.

A remark by plaintiff's counsel to the jury which would lead it to infer that the defendant would not have to pay the amount of the verdict was so improper as to require the withdrawal of a juror and continuance of the case: Hollis v. Glass Co., 220 Pa. 49; Scranton Gas & Water Co. v. Weston, 63 Pa.Super. 570.

J. Perry Eckels, with him Walter J. McClintock, for appellant in No. 228. -- In a suit for damages, arising from the death of plaintiff's decedent in an automobile injury, where the plaintiff testifies that the decedent's income from the partnership business, composed of the decedent and the plaintiff, was in the form of a salary, it is not for the defendant to develop through cross-examination that the capital of the business had been furnished by the decedent and that at least a portion of said salary was in fact a return from such invested capital: Boggess v. R.R., 234 Pa. 379.

Albert L. Thomas, Frank J. Thomas and Paul E. Thomas, of Thomas & Thomas for appellee, were not heard.

Before FRAZER, C.J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. CHIEF JUSTICE FRAZER:

These two appeals from orders of the court below refusing new trials, were argued together and will be here so considered. Both actions were the result of the same automobile accident. Myron E. Wyatt and his wife, Margaret E. Wyatt, were on a pleasure trip with appellant and his wife, traveling in a car owned and driven by appellant. Near Marion, Arkansas, in passing around a curve, on an upgrade, at night, the car skidded, went over an embankment, and struck a telegraph pole. Both Mr. and Mrs. Wyatt were seriously injured and were taken to a hospital in Memphis, Tennessee, where Myron Wyatt died soon after being admitted. Mrs. Wyatt was found to have fractures of the right shoulder and leg, a fractured sternum, fractured ribs, and other injuries. She remained in the hospital for three months, and upon leaving that institution went to defendant's home in Illinois for two weeks. After returning to her own home in Meadville, Pennsylvania, she was again under the doctor's care. The testimony shows she sustained serious and continuing physical impairments. The jury awarded a verdict of $5,000 for the death of Myron E. Wyatt, and $8,500 in the action for injuries to his wife.

Defendant in the suit to recover damages for Mrs. Wyatt's injuries, assigns as error on this appeal refusal of the court below to permit examination of one of plaintiff's witnesses, the doctor who attended her following her return home, on whether her permanent injuries might have been lessened by different treatment. This witness had no personal knowledge of plaintiff's condition until...