Appeal, No. 220, Oct. T., 1957, from order of Court of Common Pleas of Adams County, Jan. T., 1951, No. 46, in case of Richard O. Bollinger et al. v. William O. Randall. Order affirmed.
Donald G. Oyler, with him Charles W. Wolf, for appellant.
W. E. Shissler, with him Edward B. Bulleit, Nauman, Smith, Shissler & Hall, and Bulleit & Bulleit, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
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The following excerpts from the opinion of Judge W. C. SHEELY for the court below will reveal the facts and the legal problem involved on this appeal: "On January 22, 1950, the minor plaintiff, Barry William Bollinger, then two years old, was injured when struck by an automobile operated by the defendant. A settlement of all claims of the minor and of his parents arising from the accident was agreed upon by the defendant's insurance carrier and Richard O. Bollinger, the boy's father. The settlement contemplated the institution of an action in the Court of Common Pleas of Adams County and approval of the terms of settlement by the court. The plaintiffs were not represented by counsel and all matters incident to the action and the
[ 184 Pa. Super. Page 646]
settlement were handled by the attorneys for the insurance company.
"An action in trespass was instituted on December 12, 1950, and on December 16, 1950, the petition of Richard O. Bollinger was presented to the court praying for approval of the settlement, etc. The petition set forth the circumstances of the accident, the injuries sustained by the minor plaintiff, and the damages which the parties believed resulted from the accident. The injuries to the minor plaintiff were described as 'a fracture of the right and left side of the frontal bone of the skull, numerous small lacerations over the face, and ptosis of the left eyelid.' It was also alleged that Mr. Bollinger believed that the compromise was for the best interest of the minor 'for the reason that there are questions as to the negligence of the defendant which made the ultimate outcome uncertain.' Under the terms of the settlement the sum of $156.50 was to be paid to Richard O. Bollinger for expenses of medical care; $100.00 to Mr. and Mrs. Bollinger for loss of wages necessitated by their care of their son; and $343.50 to the minor plaintiff. A hearing was held on January 15, 1951, after which the court entered an order approving the settlement. The amounts were paid as directed and on January 30, 1951, a satisfaction by authority showing receipt of $600.00 signed by Richard O. Bollinger and Mary E. Bollinger, was filed in the office of the Prothonotary.
"In February, 1954, an examination was made of the minor plaintiff as the result of an injury received in a fall. It was then discovered that the vision in the left eye was irretrievably lost due to atrophy of the optic nerve, a condition which the doctors believed was caused by the accident in 1950, and which the plaintiffs admit was 'a fact which had not previously been suspected by the parents.' As a result of this discovery
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the plaintiffs presented a petition to the court on December 4, 1954, praying that the approval of the compromise be revoked; the judgment entered thereon be opened and set aside and the claim of the minor be presented (to a jury). It was subsequently discovered that no judgment had actually been entered and the petition was amended accordingly. A rule to show cause was granted upon the defendant and he has filed an answer to the ...