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BAKER v. DEROSA (01/08/64)

January 8, 1964

BAKER
v.
DEROSA, APPELLANT.



Appeal, No. 272, Jan. T., 1963, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Dec. T., 1958, No. 268, in case of Verna Baker, administratrix of estate of Jerome A. Baker, deceased, v. Biagio F. DeRosa. Judgment affirmed.

COUNSEL

Joseph Head, with him Swartz, Campbell & Henry, for appellant.

Sidney B. Klovsky, with him Paul N. Minkoff, and Klovsky and Kuby, for appellee.

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

Author: Musmanno

[ 413 Pa. Page 166]

OPINION BY MR. JUSTICE MUSMANNO

On October 4, 1958, Jerome A. Baker's automobile, with him in it, was struck in the rear by the car of Biagio DeRosa. On December 11, 1958, he died. Verna Baker, administratrix of his estate, brought suit against DeRosa, claiming that her husband's death was caused by the injuries he received when the cars collided, the injuries having brought about or aggravated a bronchogenic malignant condition. The jury returned a verdict in the sum of $10,000 and the defendant seeks a new trial, alleging failure of proof in the plaintiff's case, plus alleged trial error.

The defendant contends that Baker died of a cancerous condition in no way related to the accident of October 4, 1958. Two doctors called by the defendant so testified. Since the jury found for the plaintiff, the appellant admits that there would be no purpose in discussing the defendant's doctors' testimony.

The decedent's family physician, Dr. Broocker, testified that Baker was in good physical condition prior to the accident, that he had visited him on August 25, 1958, for a "check-up" and the examination showed him to be in "good health."

Dr. Broocker called at the home of Baker on October 6, 1958, and the patient related that he had been in an automobile accident, that his car had been struck violently from the rear and he had been thrown against the steering wheel, that his head snapped back and forth, he felt a wrenching, and he "saw stars." The doctor testified that his examination on October 6th revealed: "contusions of the chest wall, discoloration here (indicating), muscle spasm of the neck and low back, recorded here as cervical and lumbar areas. I recorded a blood pressure of 142-90, and I diagnosed a post-concussion syndrome."

[ 413 Pa. Page 167]

The decedent worked several days following the accident and then was confined to bed for several days. On October 18th he returned to work and continued at his job until November 8th when he became bedfast. He remained at home for three weeks and was then taken to the Veterans' Hospital on November 27th. His condition worsened and he died on December 11, 1958. He was then 62 years of age. When Dr. Broocker was asked what, in his medical opinion, was the cause of death, he replied: "At the time I thought it was as a result of the accident."

He was questioned further: "Q. What is your opinion? A. I felt that the violent effect of being thrust into the steering wheel, that the violent effect of the chest being struck hard against the steering wheel set into motion whatever occurred. I mean, the fact that the man was in good health reasonably close to the time of the accident and then became sick immediately after the accident, my opinion is that the accident caused the circumstances that I found. BY MR. KLOVSKY: Q. Later on you learned and were advised, and from your own observation of what you saw, that there was a diagnosis of bronchogenic carcinoma, is that correct? A. Yes. Q. Based upon everything that you saw, based upon your observation of the patient, do you have an opinion as to whether this bronchogenic carcinoma was in any way aggravated, actuated, or precipitated by the accident of October 4, 1958? ... A. My opinion is that the accident aggravated this carcinoma, causing the premature death of this man. Q. What is the basis of your opinion? A. The fact that the man was in good health immediately ...


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