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KING v. HOLT. (03/19/63)

March 19, 1963

KING, APPELLANT,
v.
HOLT.



Appeal, No. 158, Oct. T., 1962, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1959, No. 260, in case of John P. King et ux. v. Robert Holt. Judgment affirmed.

COUNSEL

Jack Brian, with him Berman, Richard & Brian, for appellant.

Ralph B. D'Iorio, with him Cramp and D'Iorio, for appellee.

Before Rhodes, P. J., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 200 Pa. Super. Page 433]

OPINION BY MONTGOMERY, J.

This is an appeal from a judgment in a trespass action taken after the lower court denied appellant's motion for a new trial, wherein she submitted as her sole reason the alleged error of the trial judge in permitting questions upon cross-examination which disclosed that John P. King, one of the plaintiffs below, and Geraldine King, the appellant, were not husband and wife, having been divorced between the time of the accident and the date of the trial.

The case arose from an automobile accident which occurred on March 23, 1958, wherein the automobile owned and operated by the appellant, and in which John P. King, her husband, was a passenger, was struck in the rear while stopped for a red light. The property damage resulting therefrom was not great, but both appellant and her husband claimed whiplash injuries and alleged certain disabilities flowing therefrom, including traumatic psychoneurosis.

The jury trial resulted in separate verdicts in favor of John P. King in the amount of $5,000 and in favor of the appellant in the amount of $1,000.

[ 200 Pa. Super. Page 434]

The complaint, as initially filed, included a claim for loss of consortium by appellant's husband. However, at the commencement of the trial, counsel for appellant, at side-bar, advised the court that he was withdrawing the claim for loss of consortium and requested the trial judge to rule inadmissible any testimony that appellant had subsequent to the accident initiated divorce proceedings against John P. King, the other plaintiff, and that a final decree of divorce had been rendered prior to trial. This request was refused, and during the course of the trial counsel for the appellee elicited upon cross-examination of appellant the fact of the divorce. A further objection to the testimony was overruled.

The sole question presented by this appeal is whether the lower court abused its discretion in refusing appellant's motion for a new trial subsequent to permitting cross-examination which disclosed that at the date of the trial the appellant and her husband had been divorced, and where a claim for loss of consortium had been withdrawn by the husband.

The testimony in question consisted of the following: "Q. Where do you live now, Mrs. King? A. I live in Ecorse, Michigan. Q. You and your husband are divorced, are you not? A. For the time being, we are. We intend to reconcile. The Court: What was that? The Witness: We intend to reconcile. He came up here about a year ago when I was expecting my girl, and he hasn't been able to work steady, and I was depressed and I think he was worried over supporting two babies and all, and when he came up here, well, ...


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