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January 21, 1963


Appeal, No. 289, Jan. T., 1962, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1957, No. 806, in case of Irene Boudwin v. Yellow Cab Company, Inc. Judgment reversed; reargument refused March 1, 1963.


James E. Beasley, with him Beasley & Ornsteen, for appellant.

Tom P. Monteverde, with him Samuel D. Slade, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 410 Pa. Page 32]


The question presented in this appeal is perhaps one of logic rather than of law, although of course only controverted legal principles can bring a case before this Court for review. In an action involving damages arising out of a tortious accident, is it proper to inform the jury that the injured person is receiving or has received workmen's compensation? That question has already been met in other cases but it is presented here in a slightly different form. The answer, however, always remains the same.*fn1

The victim of a tort is entitled to receive from his tortfeasor the full amount he is entitled to, as the result of the latter's negligence, regardless of what the

[ 410 Pa. Page 33]

    former receives from other sources. For instance, it would be entirely improper, in a personal injury case, for the defendant to show that the plaintiff was receiving benefits under an accident insurance policy, or that he was on a pension, or was obtaining assistance from the government as a war veteran or in any other capacity. It is no less irrelevant in a trespass action for the jury to be informed that the plaintiff, during the period he is claiming damages for injuries allegedly inflicted by the defendant, was paid workmen's compensation as a result of the same injuries for which he is claiming damages. A tortfeasor may not ride to immunity from his wrong on the back of workmen's compensation paid by someone else. His disability is direct and may not be transferred.

While workmen's compensation is a convenient and very helpful crutch by means of which an injured employee may hobble along until he returns to work, it can by no means be regarded as the equivalent of the full rehabilitation to which he is entitled because of injuries inflicted by a third person's wrongdoing.

Judges should be vigilant, in personal injury trespass cases, to keep out of the trial all references to benefits collaterally received by the plaintiff. In the case of Healy v. Rennert, 9 N.Y.2d 202, the Court of Appeals of New York well said: "In most jurisdictions the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute (13 A.L.R.2d 355). In Standard Oil Co. v. United States (153 F.2d 958, aff'd. 332 U.S. 301), it is stated that in the United States the prevailing rule seems to be that an injured person may recover for wages lost and medical expenses incurred during his incapacity even though such

[ 410 Pa. Page 34]

    amounts were supplied by insurance or gratuitously. In Capital Products, Inc. v. Romer, [102 U.S.App.D.C. 279], (252 F.2d 843), the court held that the defendant was not entitled to show in mitigation of damages that a fireman had secured medical retirement from the Fire Department at half pay under an established pension system."

The pertinent facts in the case at bar follow. Irene Boudwin, an employee of the Perfect Photo, Inc., of Philadelphia, was seriously injured on October 24, 1957, when the car which she was driving for her employer, was struck by a cab of the defendant Yellow Cab Company. She brought suit against the cab company and, in the ensuing trial, the jury returned a verdict in her favor in the sum of $16,000. She asks for a new trial on the ground that the verdict inadequately covered her injuries which impaired her vision and affected her spinal column to the extent that she has been unable to work at gainful employment ever since the accident. She was hospitalized five different times for varying periods for examination and treatment in the fields of neurology, neurosurgery, opthalmology and orthopedics.

From the date of the accident up to the time of the trial she lost $9,166 in unpaid wages; her medical expenses amounted to $3,451. Her special damages thus totaled $12,617, which left her only $3,383 for pain and suffering, reduction in earning power, and medical expenses to be incurred in the future.

It could be argued that, in the absence of trial errors, or palpable misapprehension of the facts, the jury is in a better position than an appellate court, to assess the damages due a plaintiff who has proved negligence against the defendant. The plaintiff submits here, however, that there were indeed trial errors and that these errors occasioned what she claims is a grossly inadequate verdict. The most serious of those asserted

[ 410 Pa. Page 35]

    trial errors was the introduction of evidence on ...

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