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SCHMELTZ v. AMERICAN CASUALTY COMPANY (12/16/65)

decided: December 16, 1965.

SCHMELTZ
v.
AMERICAN CASUALTY COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1960B, No. 334, in case of John Edward Schmeltz, Sr., administrator of estate of John Edward Schmeltz, Jr., v. American Casualty Company.

COUNSEL

Richard D. Klaber, with him Dickie, McCamey & Chilcote, for appellant.

John R. Luke, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J.

Author: Watkins

[ 206 Pa. Super. Page 325]

This is an appeal from a judgment entered on a jury verdict in the Court of Common Pleas of Allegheny County in favor of the plaintiff-appellee, John Edward Schmeltz, Sr., administrator of the Estate of John Edward Schmeltz, Jr., and against American Casualty Company, of Reading, Pennsylvania, the defendant-appellant; and from the denial by the court below of a motion for judgment n.o.v.

[ 206 Pa. Super. Page 326]

The testimony must be viewed in the light most favorable to the verdict winner, with every reasonable inference arising therefrom. Coventry v. Keith, 175 Pa. Superior Ct. 504, 106 A.2d 658 (1954). So viewed the facts are as follows: During the summer of 1959 John Schmeltz, Jr. and his younger brother James made arrangements to attend Camp Fairfield, a United Presbyterian Church camp in western Pennsylvania. Each boy was required to take a physical examination and must have the approval of the family physician before being accepted for the camp.

According to his family physician John Edward Schmeltz, Jr. had some respiratory trouble and had his tonsils removed in April of 1959. Afterward he gave every evidence of good health, and according to an examination by his family doctor on April 10, 1959, including a heart examination, he was in good health at that time. He took the physical examination required by the camp on Saturday, July 3, 1959, and was found to be in good health.

On July 4, 1959, the appellee took his two sons to the camp and upon their arrival they were registered and each assigned to separate groups and quarters for their stay at the camp. The appellee informed the camp director that his son was not a good swimmer.

About one half hour after registration James saw his brother changing into a bathing suit to go swimming. James went for a walk with other boys. One half hour later he saw his brother lying near the pool, his suit and body were wet, and the lifeguard and a nurse were giving him mouth to mouth resuscitation.

The local fire company was called and attempted to use a resuscitator but it failed to function. Dr. Walter D. Shutter arrived shortly thereafter and saw the difficulty and performed a tracheotomy on the boy ...


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