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FRANKEL v. TODD

October 25, 1966

Alvin H. FRANKEL, Guardian of the Estate of Nydia Pasceri, a minor
v.
John J. TODD, Jr. and Grayson Moore, Jr.



The opinion of the court was delivered by: LUONGO

 On May 13, 1961, Nydia Pasceri, 19 years of age, was a passenger in an automobile operated by defendant when it ran off the road and plunged over an embankment. Miss Pasceri sustained serious injuries including a fractured pelvis and a ruptured bladder. An out-of-state guardian was duly appointed for the minor and suit was instituted in this court based on the resultant diversity of citizenship. The case was tried in May 1966, and the jury returned a verdict in the amount of $25,000 in favor of the guardian. Dissatisfied with the size of the verdict, the guardian seeks a new trial and urges, as grounds, that:

 1. The Court erred in refusing to submit to the jury impairment of earning capacity as an element of damage.

 2. The Court abused its discretion in refusing to postpone the trial.

 3. The Court erred in refusing to permit plaintiff to present testimony as to a certain claimed disability resulting from injuries sustained in the accident.

 4. The Court erred in refusing to allow the guardian to recover medical and hospital expenses.

 5. The verdict was inadequate.

 Each of the grounds has been considered carefully and will be discussed briefly. Since all lack merit the motion for new trial will be denied.

 1. Impairment of Earning Capacity.

 Among the injuries sustained by Miss Pasceri were fractures of several of the pelvic bones. The healing of the fractures resulted in a distortion of the pelvic ring, shifting the right side upward leaving the crest of the right hip approximately one-half inch *fn1" higher than the left. The deformity of the hip is permanent and cannot be corrected.

 In essence, it is plaintiff's contention that proof of permanent injury, without more, requires submission of impairment of earning power to the jury. The cases he has cited hold only that, even in the absence of actual loss of earnings, the injury and the resultant disabilities may nevertheless establish impairment of earning power for which the injured person is entitled to be compensated.

 Thus, in Bochar v. J. B. Martin Motors, Inc., 374 Pa. 240, 97 A.2d 813 (1953), the injured person was a telephone repairman with a permanent 25-30% limitation of motion of the knee. There was evidence that when he returned to his employment he was unable, because of his semi-frozen knee, to perform his duties fully, and that in an important part of his work, tracing "stuck" calls, he was able to do only one-half the amount of work performed by the average man in the industry because of the amount of bending required. There was also evidence of specific loss from inability to do overtime work. On that proof it was held proper to permit the jury to consider whether his economic horizons had been shortened because of the injuries.

 To the same effect: Holton v. Gibson, 402 Pa. 37, 166 A.2d 4 (1960) where evidence of permanent skull injury causing severe headaches and memory deficiency; leg injury causing pain upon prolonged standing; inability to perform former duties as a guard; and inability to drive an automobile were held to be sufficient evidence of limitation of economic horizons for submission of impairment of earning power to the jury, notwithstanding higher earnings after the accident; and City of Philadelphia v. Philadelphia Transportation Co., 400 Pa. 315, 162 A.2d 222 (1960), in which permanent injury to a policeman's legs, making it impossible for him to run and interfering with his ability to lift (precluding assignment to duty on an emergency patrol wagon), was held sufficient evidence of inability to perform duties to warrant submission of the issue of impairment of earning power to the jury.

 A further illustration of the same principle is found in Yeager v. Anthracite Brewing Co., 259 Pa. 123, 102 A. 418 (1917), in which plaintiff, an engineer in a brewery, as part of his duties was required to perform certain physical tasks. The accident in question caused tearing of the muscles and muscle fibres of his arm causing severe and permanent injury to it. Although plaintiff's earnings after the accident were the same as before, there was evidence that his strength was substantially impaired and he was permanently unable to do as much or as heavy physical labor as he had been able to do before the accident. It was held ...


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