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BARTUNEK v. KOCH. (05/22/61)

May 22, 1961

BARTUNEK, APPELLANT,
v.
KOCH.



Appeal, No. 246, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1955, No. 717, in case of Joseph J. Bartunek v. Herman Koch. Judgment affirmed.

COUNSEL

P. J. McArdle, with him Frank J. Kernan, for appellant.

Bliss R. Mentzer, with him Weis & Weis, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Bell

[ 404 Pa. Page 2]

OPINION BY MR. JUSTICE BELL.

Plaintiff brought an action in trespass for personal injuries and recovered a verdict of $10,000. Plaintiff moved for a new trial on the ground of gross inadequacy of the verdict and erroneous instructions by the trial Judge. When the new trial was refused he took this appeal.

Plaintiff is 49 years of age. Plaintiff's doctor could not state definitely the cause or extent of plaintiff's injuries. It is unnecessary to detail the injuries, since the only material question on this appeal involves the question of whether a jury may, in determining damages, take into consideration the plaintiff's unwillingness to submit to a major operation on his knee - an operation which a prudent man would undergo but was feared by the plaintiff.

Plaintiff suffered a torn semilunar cartilage of the right knee. Prior to the accident plaintiff had arthritis and "joint mice" in his right knee. Plaintiff's doctor advised him right after the accident as well as thereafter to have the cartilage removed and stated that an operation would definitely help and correct or at least improve plaintiff's knee. Plaintiff testified that he was afraid to have the operation since he knew persons whose knees had been worsened by similar operations. Plaintiff's doctor further testified that the disability in plaintiff's right knee could have been caused either by

[ 404 Pa. Page 3]

    a semilunar cartilage involvement or the pre-existing osteo-arthritic condition and the "joint mice", or both; and that "it was pretty hard to say that trauma caused the injury."

The only material question in this appeal is whether the lower Court erred in charging the jury as follows: "If the jury believes that the condition of the plaintiff can be relieved by surgical operation on his knee, which an ordinarily prudent man would undergo, such fact must be taken into consideration as an element which would reduce the amount of damages to which the plaintiff would otherwise be entitled."

Leitzell v. Delaware L. & W. R. Co., 232 Pa. 475, 478 (1911), is directly in point and supports the lower Court. In that case the Court said (pages 477-478): "The theory of the defendant in this respect was formulated in the third point for charge presented by counsel, as follows: 'If the jury believe that the condition of the plaintiff can be relieved, by a simple surgical operation, which an ordinarily prudent man would undergo, such facts must be taken into consideration as an element which would reduce the amount of damages to which the plaintiff would otherwise be entitled.' The trial judge answered this point by saying, 'The point is affirmed, providing the jury find that the proposed surgical operation is not a serious or dangerous one, and one that can be performed without any risk of failure or danger to the plaintiff. Otherwise, it is refused.' We think the point should have been affirmed without qualification.*fn* It referred to 'a simple surgical operation, which ...


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