Opinion
April 20, 1939.
July 3, 1939.
Negligence — Actions — Parties — Wrongful death — Parent and child — Illegitimate child — Stepfather — Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309.
1. Under the Acts of April 15, 1851, P. L. 669, and April 26, 1855, P. L. 309, as amended, an action for the wrongful death of a mother may be brought in the name of her minor, illegitimate child by a next friend, against decedent's husband, who was not the father of the child. [60-61]
Negligence — Automobiles — Passing vehicle — Evidence.
2. In an action for damages for wrongful death, in which it appeared that the defendant proceeded to pass a bus on a descending, curving road, after discovering that his brakes would not hold as he approached the rear of the bus, and crashed into a truck approaching up grade from the opposite direction, it was held that the evidence sustained a finding of negligence. [61]
Practice — New trial — Verdict excessive — Improper charge.
3. A new trial is properly granted where the verdict is excessive and the trial judge fails to charge properly upon the question of damages. [60]
Argued April 20, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeals, Nos. 194, 217 and 218, Jan. T., 1938, from judgments of C. P. No. 3, Phila. Co., Sept. T., 1935, No. 3613, in case of David Paul Bingler, a minor, by his next friend and grandfather, Charles Bingler, etc., v. Donald Wilkie Hopper and Anthony M. Uhrik. Appeals affirmed.
Action for wrongful death. Before BOK, P. J.
The opinion of the Supreme Court states the facts.
Verdict for minor plaintiff in sum of $3,120. Motion for new trial granted. Plaintiffs and defendants appealed.
Errors assigned, among others, were grant of new trial and refusal of judgment for defendants n. o. v.
Victor Frey, with him Philip Campbell, for appellants, No. 194, and for appellees, Nos. 217 and 218.
John B. Martin, with him Duane, Morris Heckscher, for appellees, No. 194, and for appellants, Nos. 217 and 218.
There are three appeals; the plaintiff's is from the award of a new trial. Defendants, by separate appeals, complain of the refusal of their motions for judgment n. o. v.
The defendant, Hopper, was a truck driver employed by the defendant, Uhrik. Hopper's wife was killed while accompanying him on Uhrik's truck. She had a son, David, at the time she married Hopper, and, on that surviving son's behalf, this suit was brought to recover for her death which, it was alleged, resulted from defendants' negligence. The suit was brought in the name of the minor by his next friend and grandfather, Charles Bingler, and by his grandparents, in their own right. At the trial, counsel for the plaintiff disclaimed any right in the grandparents and had the record amended accordingly. The verdict was for the plaintiff.
The learned trial judge, in his opinion granting the new trial, stated that he had omitted to charge "upon the present worth to the plaintiff of the future earnings of his mother which she would have contributed to his maintenance. Moreover, the verdict was greatly excessive. . . ." In such circumstances, the verdict could not be sustained, and the order granting the new trial must be affirmed.
The defendant-appellants rely on two grounds: first, that under the Acts of 1851 and 1855, a child may not sue if one parent survives and that, in any event, a child may not sue its parent in tort. We considered those Acts in the opinion just filed in Minkin v. Minkin, 336 Pa. 49, and must reject the contentions made by appellants. The relationship of the parties disclosed in the present record is so different from that appearing in Minkin's case that a familiar rule of liability may be applied without again raising the differences of view disclosed in the opinions filed in Minkin's case. The defendant, Hopper, was not the child's father; the child did not live in his household nor did he support the child or, in fact, stand in loco parentis. The child resided with his mother's parents who supported the child, aided by small contributions from his mother's separate earnings and payments by his putative father under an order of court. There would be nothing, therefore, to support the suggestion that there was a family relationship which could be an obstacle to suit by the minor. The second ground on which judgment n. o. v. was desired was there was no evidence of negligence. The evidence was sufficient to enable the jury to find that Hopper was driving on Uhrik's business; and that Mrs. Hopper accompanied her husband with Uhrik's consent; the agency was averred in the statement, and no affidavit of defense denying it was filed: compare Koontz v. Messer, 320 Pa. 487, 181 A. 792.
12 PS sections 1601, 1602.
Hopper, called for cross-examination, testified that the accident occurred on a descending grade near Altoona; that a Greyhound Bus passed him and then reduced its speed; he thought his truck was "creeping up" on the bus and, to avoid colliding with it, put on brakes; they did not hold the truck whereupon he went into high gear and dashed around the Greyhound Bus on a curve where he could not see beyond 100 feet ahead and crashed into a truck that was slowly approaching up the mountain and which he first saw about 40 feet in front of him. That evidence presents a case for the jury: compare Casey v. Siciliano, 310 Pa. 238, 165 A. 1.
Section 1008 (b) of the Motor Vehicle Code of 1929, P. L. 905, 977, as amended, 75 PS section 543 (b), provides: "The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction, when approaching the crest of a grade, nor upon a curve in the highway, where the driver's view along the highway is obstructed within a distance of three hundred (300) feet ahead, except, on a highway having two (2) or more lanes for movement of traffic in one direction, the driver of a vehicle may overtake or pass another vehicle. . . ." This accident occurred on a two-lane highway.
In each of the appeals the action complained of is affirmed.