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LOBIANCO v. VALLEY FORGE MILITARY ACADEMY

December 6, 1963

Frank LOBIANCO, a minor, by his natural Guardians, Christine M. Lobianco and Valentine .lobianco, and Christine M. Lobianco and Valentine Lobianco, in their own right
v.
VALLEY FORGE MILITARY ACADEMY (Foundation), a Pennsylvania corporation and United States of America



The opinion of the court was delivered by: KRAFT

The plaintiff parents brought this action in their own right and as guardians of their minor son to recover damages for injuries sustained by the minor plaintiff, while he attended Valley Forge Military Academy (Valley Forge) as a student cadet. Jurisdiction of their claim against Valley Forge is founded on diversity of citizenship. Their claim against the United States is based on the Tort Claims Act.

In the suit against Valley Forge, at the close of the evidence, we dismissed the parents' claim for want of the requisite jurisdictional sum. We submitted the minor's claim to the jury, which returned a special verdict in the form of answers to written interrogatories, upon which judgment was entered for Valley Forge.

 In the action against the United States, we made specific findings of fact and conclusions of law, finding in favor of the United States, and judgment was entered accordingly.

 Plaintiffs filed motions for judgment n.o.v. and for new trial as to both defendants. At oral argument, however, their motions for judgment n.o.v. were withdrawn, leaving for present consideration only the motions for a new trial.

 The facts which gave rise to this action may be briefly stated. Early in 1955, the United States loaned to Valley Forge, under certain conditions and regulations, ten M-20 light armored cars for use in connection with the ROTC program, which had been established at Valley Forge in 1929. In the afternoon of May 15, 1956, a number of these armored cars were parked in front of the Valley Forge 'arsenal' in a column, with a space of five to ten feet between the front of one vehicle and the rear of the vehicle ahead. The minor plaintiff, then in his seventeenth year, was a designated 'driver' of one of the armored cars, and Keating, a fellow cadet, was his designated 'assistant driver'. The minor plaintiff directed Keating to get into the car and start the motor. Keating started the motor when the plaintiff was standing directly in front of the car. For some reason, not altogether clear, the car lunged forward pinning the plaintiff against the rear of the vehicle ahead, and inflicting serious injuries in the region of his upper thigh and groin.

 We shall consider first the motion for a new trial as to Valley Forge.

 The parent plaintiffs contend that the trial judge erred in dismissing their claim against Valley Forge. While the question is now academic, in view of the jury's special finding that Valley Forge was not negligent, we think plaintiffs' argument warrants an answer.

 'In an action of trespass to recover damages suffered by a minor, the minor plaintiff is entitled to damages for pain and suffering and probable loss of earnings after he reaches his majority, while his parents are entitled to damages for medical expenses they have incurred and will incur because of their son's injury and for their loss of his services during minority.' Schmidt v. Kratzer, 402 Pa. 630, 168 A.2d 585 (1961). There can be no recovery for loss of companionship. Quinn v. City of Pittsburgh, 243 Pa. 521, 525, 90 A. 353 (1914).

 Immediately after the accident on May 15, 1956, the minor plaintiff was taken to a hospital where he underwent extensive surgery. He was discharged from the hospital on June 2 or 3, 1956, and remained at his home until late August of the same year, when he returned to Valley Forge as a student cadet. The evidence indicates that thereafter he led a normal life and engaged in his usual activities, although he has complained at times of coldness and numbness in the injured parts. He graduated from Valley Forge in 1959, and has since been engaged in business.

 The evidence established that the parent plaintiffs expended $ 1519 for medical expenses in connection with their son's injuries. There was not a scintilla of evidence bearing on loss of their son's services or of their value. There was no evidence that he had ever rendered, or was expected to render, any services. Judging from the obvious social status and mode of living of this family, it would not appear that there was any element of lost services in the case. If it be argued that the parents were entitled to recover for the loss or impairment of their son's capacity to render service, there was no evidence to show how long such incapacity existed after his discharge from the hospital on June 2 or 3, 1956.

 As has been noted, the accident occurred on May 15, 1956. All of the medical expenses were incurred within the next few weeks, and the minor plaintiff resumed his normal way of life within the following three or four months. This action was instituted on April 22, 1958, at which time the parents' pecuniary loss had been definitely established for at least a year and a half. Counsel well knew, when he began this action, that the parents' loss was scarcely more than half of $ 3000, and that there was no bona fide expectation of further provable losses which would materially increase their claim. Nonetheless, counsel filed the parents' claim in utter disregard of the minimal amount then required to be in controversy. We are not unfamiliar with the devices contrived at times to invoke this court's jurisdiction, nor with impelling reasons therefor, but it is idle, in our view, to argue in the present circumstances that the parents' action was brought in good faith.

 We conclude that the parent plaintiffs' claim was properly dismissed. Where the evidence fails to establish the requisite jurisdictional amount so as to sustain Federal jurisdiction, the District Court should dismiss the complaint for want of jurisdiction. Giordano v. Radio Corporation of America, 183 F.2d 558 (3rd Cir. 1950).

 The minor plaintiff now contends that the trial judge erred in submitting to the jury interrogatories now characterized as calling for conclusions of law or mixed questions of law and fact, rather than interrogatories calling for facts upon which negligence or contributory negligence might be predicated.

 Counsel, during argument, persisted in misconceiving the procedure employed in submitting this case to the jury. The case was given to the jury for special verdict under Rule 49(a), and not for a general verdict accompanied by answers to interrogatories, under Rule 49(b), of the Federal Rules of Civil Procedure. Counsel's misconception is extraordinary, since the 'Commentaries' to Rule 49, in 28 U.S.C., at p. 434, warn against just such confusion.

 The relevant interrogatories and the jury's answers thereto were as follows (omitting those which dealt with causation and were unanswered, absent a finding of negligence):

 '1(a) Was the defendant, Valley Forge Military Academy, negligent? No. '2(a) Was Frank Lobianco negligent? No.'

 These interrogatories were eminently proper, both as to form and content. In McCandless v. L. G. DeFelice & Son, Inc., 144 F.Supp. 462 at p. 464 (D.C.W.D.Pa.1956), where similar interrogatories were submitted, the Court stated:

 'Plaintiff's contention that the court's submission of interrogatories to the jury was improper since such questions pose questions of law rather than questions of fact is, in my judgment, without merit. The court in its charge most exhaustively explained the factual basis underlying the answer to each interrogatory. It is pertinent to observe that the practice of submitting such interrogatories under Rule 49(a) of the Rules of Civil Procedure, 28 U.S.C. is salutary and to be encouraged, particularly in cases such as this where interrogatories, underlying a general verdict, assure and make explicit decision upon several issues which must be resolved before a proper disposition can be made of the case. Cate v. Good Bros., 3 Cir., 181 F.2d 146.'

 The interrogatories submitted in the instant case were more precise and specific than those approved by our Court of Appeals in Halprin v. ...


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