Appeal, No. 38, April T., 1964, from order of Court of Common Pleas of Allegheny County, July T., 1961, No. 1517, in cases of Mary Louise Acquaviva, a minor, by her parents, Nicholas W. Acquaviva and Betty Louise Acquaviva, et al. v. George J. Hartman et al.; and Betty Louise Acquaviva v. George J. Hartman. Order reversed.
Russell J. Butler, Jr., with him Weis & Weis, for appellant.
Coleman Harrison, with him J. Thomas Hoffman, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes. P.j., absent).
[ 203 Pa. Super. Page 507]
OPINION BY MONTGOMERY, J.
As a result of a collision between an automobile operated by Betty Louise Acquaviva and another operated by George J. Hartman, at the intersection of Harding Drive and Glen Way in Penn Hills Township, Allegheny County, Betty Louise Acquaviva and her daughter, Mary Louise Acquaviva, aged three, a passenger in the car operated by her mother, were injured, and the automobile in which they were riding, owned by the husband and father Nicholas W. Acquaviva, was damaged beyond repair.
A complaint in trespass was filed by the three Acquavivas against George J. Hartman and his mother, Wilda Hartman, who owned the automobile operated by her son, on the theory that he was her agent.*fn1 Damages were claimed by reason of injuries to Mrs. Acquaviva and her daughter and also for the loss of the automobile.
The Hartmans were granted a severance of the claim of Mrs. Acquaviva from the claims of Mr. Acquaviva and the minor; and Mrs. Acquaviva was brought upon the record as an additional defendant in their case.*fn2 The actions were consolidated for trial, which
[ 203 Pa. Super. Page 508]
resulted in verdicts in favor of the minor for $1,200, in favor of Mr. Acquaviva for $300, and for Hartman in the action of Mrs. Acquaviva against him. In the latter action the jury, without having been requested to make a special finding, found for the defendant "because of the contributory negligence of the plaintiff Mrs. Betty Louise Acquaviva." Although the jury did not specifically name the original defendant, Hartman, or the additional defendant, Mrs. Acquaviva, as the party or parties against whom the verdicts of the minor and Mr. Acquaviva were rendered, such a verdict would be construed to be against both. Williams v. Van Camp, 379 Pa. 149, 108 A.2d 726 (1954).
Motions ex parte all plaintiffs for a new trial were granted for the reasons, (1) that the charge of the court did not properly define contributory negligence and did not inform the jury that the burden of proving contributory negligence on the part of the plaintiff was on the defendant and, (2) "that the charge contained matters not pertinent to the issues of the case. We have no doubt that these comments tended to confuse the jury further."
Although no specific comments are set forth in the opinion of the lower court, we have examined the charge and we find none that constitute basic and fundamental error so prejudicial as to be covered by a general exception to the charge. No specific exception was taken. Therefore, we shall ...