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MALEK v. GIMBEL BROTHERS (09/16/60)

September 16, 1960

MALEK
v.
GIMBEL BROTHERS, INC., APPELLANT.



Appeals, Nos. 113 and 114, Oct. T., 1960, from order of Municipal Court of Philadelphia County, Dec. T., 1958, No. 1463, in case of Leo Malek et ux. v. Gimbel Brothers, Inc. Order affirmed.

COUNSEL

Albert C. Gekoski, for appellant.

Frank J. Eustace, Jr., with him Arnold Wainstein, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Wright

[ 193 Pa. Super. Page 182]

OPINION BY WRIGHT, J.

Leo Malek and Eleanor Malek, his wife, filed a complaint in trespass against Gimbel Brothers, Inc., alleging

[ 193 Pa. Super. Page 183]

    that the wife-plaintiff, a customer in defendant's department store, sustained personal injuries when struck on the right leg by a bin which fell from a moving truck or dolly. The jury returned a verdict for the defendant, and the court below granted a new trial. This appeal followed.

The record discloses that, shortly after the store opened on the morning of May 13, 1958, Mrs. Malek was standing at a counter in the hosiery department. Appellant's employes had removed four bins from an adjacent counter and were taking them to a different location. These bins were five feet long, one foot high and one foot deep, constructed of plywood with formica outer covering, and were designed to hold rolls of piece goods. As the employes made a turn in the aisle, one of the bins fell off at Mrs. Malek's feet. It is clearly apparent, indeed not seriously questioned, that the truck or dolly was either carelessly loaded or carelessly operated. Appellant's defense was that the falling bin did not actually strike Mrs. Malek's leg, and that the thrombophlebitis of which she complains did not occur as a result.

Mrs. Malek testified that, while she did not see the bin fall, "suddenly something hit my leg and I felt the pain and then there was a crash". She was taken to the dispensary where the nurse applied ice cubes to the leg. After returning home, Mrs. Malek first consulted Dr. Brown, and later Dr. Skversky. In the nature of specific losses, claim was made for the services of Dr. Brown and Dr. Skversky, also for a laboratory charge, and for pharmacy bills covering bandages and elastic hose. No claim was made for household services. However, Mrs. Malek was questioned on cross-examination, over objection, relative to a bill previously submitted (apparently when settlement was being discussed) indicating payments "to Mrs. Edith

[ 193 Pa. Super. Page 184]

Saunders for housekeeping during period of incapacitation". Counsel for appellant then attempted to examine Mrs. Malek concerning a written statement allegedly made by Mrs. Saunders, who was not called as a witness. The trial judge ruled that this statement was inadmissible. However, it ...


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