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SCHWAB v. P.J. OESTERLING & SON (11/12/56)

November 12, 1956

SCHWAB
v.
P.J. OESTERLING & SON, INC., APPELLANT.



Appeal, No. 158, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 1652, in case of Emma E. Schwab v. P.J. Oesterling & Son, Inc. Judgment affirmed. Trespass for wrongful death. Before ALPERN, J. Verdict in the sum of $10,000. under Wrongful Death Act and in the sum of $5000. under the Survival Act; defendant's motion for new trial and judgment n.o.v. refused and judgment entered on the verdict. Defendant appealed.

COUNSEL

Leonard M. Mendelson, with him A. M. Grossman, for appellant.

Louis Vaira, with him J. Thomas Hoffman, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 386 Pa. Page 389]

OPINION BY MR. JUSTICE JONES.

The plaintiff's decedent, Curtis S. Schwab, died as the result of injuries received in an automobile accident two days earlier. He left to survive him his widowed mother whom he supported and with whom he lived on their farm. Mrs. Schwab brought suit in her own right and as administratrix c.t.a. of the estate of her deceased son against the defendant company for damages on the allegation that negligence of the defendant was responsible for the accident which resulted in her son's injury and death.

The plaintiff averred in paragraph 8 of her complaint that, through the death of her son, she had lost his companionship and comfort and the support and maintenance which he had given her continuously until the time of the fatal accident, for which she claimed damages. By paragraph 9, she averred that, as administratrix

[ 386 Pa. Page 390]

    c.t.a. of her deceased son's estate, she had been compelled to pay, because of his injury and death, large sums of money for hospital bills, medical services and the expenses of his funeral, for all of which she claimed damages as administratrix. She also claimed damages for the loss of her son's automobile which was completely demolished in the accident.

At trial, the court directed a verdict for the defendant as to Mrs. Schwab's claim in her own right but submitted the case to the jury on her claims as administratrix of her son's estate. The jury returned a verdict for the plaintiff of $10,000 damages and $1,052.75 expenses for a total of $11,052.75. The defendant moved for judgment n.o.v. and for a new trial. The court en banc denied the motion for judgment n.o.v. and, also, denied the motion for a new trial contingent, however, upon the plaintiff's filing a remittitur for so much of the verdict as was in excess of $6,500. A remittitur not having been filed, a new trial automatically ensued. The defendant thereupon appealed to this court, assigning for error the lower court's refusal of its motion for judgment n.o.v. We affirmed the denial of the n.o.v. motion and, likewise, the granting of a new trial: see 380 Pa. 1, 108 A.2d 778.

Before the retrial and more than two years after the son's death, Mrs. Schwab moved the court below for leave to amend paragraph 9 of her complaint by adding thereto the following: "She claims the earnings of Decedent during his normal life expectancy less the reasonable cost of his maintenance." She also sought to amend paragraph 10 of the complaint by adding thereto a claim in her own right for the damage of the automobile driven by her son at the time of the accident ...


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