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Frankel v. Todd

decided: April 10, 1968.

ALVIN H. FRANKEL, ESQUIRE, GUARDIAN OF THE ESTATE OF NYDIA PASCERI, A MINOR, APPELLANT,
v.
JOHN H. TODD, JR. V. GRAYSON MOORE, JR., A THIRD-PARTY DEFENDANT



November 6, 1967, Reargued

Staley, Chief Judge, and Kalodner and Freedman, Circuit Judges.

Author: Kalodner

Opinion ON REHEARING

KALODNER, Circuit Judge.

The critical question presented,*fn1 is whether, at the trial of the minor plaintiff's personal injury action, the District Court erred in refusing, in the light of her undisputed disabling permanent injury, to submit to the jury, as an item of damages, the issue of impaired earning capacity.

Since jurisdiction is based on diversity of citizenship and the accident which led to this action occurred in Pennsylvania the law of that Commonwealth applies.

Necessary to our disposition of the stated question are these facts:

On May 13, 1961, the minor plaintiff, then 19 years old and a student at a teachers' college, was a passenger in defendant's automobile when it ran off the road and plunged over an embankment. She sustained serious injuries, which, as the District Court charged the jury, included a cerebral concussion, ruptured bladder, damage to other internal organs, and numerous fractures of the pelvic bones which resulted in a tilting of her right hip; the crest of the right hip is approximately one inch higher than the left, resulting in a limping gait.

The District Court in its charge to the jury stated that "There has been no dispute * * * as to the fractures and certain damage to the bladder and other internal organs. * * *" and further instructed the jury as follows:

"You should, therefore, accept the testimony that, in fact, Miss Pasceri [the minor plaintiff] had fractures to the pelvis, that the fractures have resulted in a deformity to the hip, that they have caused a limp, that that condition is permanent, that it cannot be corrected, except by an operation which, at least one of the doctors testified, was a very serious one and whose likelihood of success was so small that he would not recommend such an operation."

Prior to the District Court's charge to the jury it refused to instruct it, as requested by plaintiff's counsel, that "Miss Pasceri would also be entitled to recover a sum representing the extent to which you may find her earning power to have been impaired by reason of her injuries."

In denying the requested instruction the District Court said (pp. 649-650 N.T.)

"Perhaps evidence might have been adduced on this score, but I feel, under the circumstances, I cannot permit the jury to speculate as to the effect that a distorted hip will have on Miss Pasceri's abilities in the future to earn money".

On the score of the requested instruction and the District Court's ruling with respect thereto, it must be noted that (1) plaintiff testified that her head injuries left her with headaches, dizziness, ringing in her ears, and blurring of vision which limits her reading both at school and at home; her hip injury is painful and exhausting; it hampers her in getting about and "slows me down quite a bit"; and (2) plaintiff adduced medical testimony that her sacroiliac joint had suffered serious injury with resulting permanent arthritis creating ...


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