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BOUSHELL ET UX. v. J. H. BEERS (11/13/69)

decided: November 13, 1969.

BOUSHELL ET UX., APPELLANTS,
v.
J. H. BEERS, INC.



Appeal from judgment of Court of Common Pleas of Monroe County, Sept. T., 1961, No. 104, in case of Edward C. Boushell et ux. v. J. H. Beers, Inc.

COUNSEL

John J. Pentz, Jr., with him Achterman & Pentz, for appellants.

Edward H. Hoffner, with him Robinson & Hoffner, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 215 Pa. Super. Page 440]

On June 17, 1960, and for some time prior thereto, the appellee engaged in building a ramp to Interstate Route 80. The ramp adjoined the lawn area on the south side of appellants' house and lot. In constructing the ramp, appellee broke large rocks by use of a crane which lifted and dropped an 8000-pound steel ball from heights as high as 25 feet. The operation caused vibrations to appellants' house and threw pieces of rock onto their house and lawn. On June 17, 1960, the husband-appellant heard and felt a crash and ran out of his house to investigate. He claimed that he fell to the ground as the result of having been struck on the head by a rock. He suffered a cut on his forehead and broke his false teeth.

Appellants brought suit in trespass against appellee on two counts. The first count was for damage to the real estate, and the second was for the husband's injuries. The jury returned verdicts for the appellants on both counts. Appellants' motions for new trial were refused and husband- appellant appeals from the judgment entered on his count for personal injuries, claiming inadequacy and errors in the charge.*fn1

The husband's verdict was $395. Treatment of his head wound, including x-ray, and repair of his dentures

[ 215 Pa. Super. Page 441]

    cost $275. However, husband spent approximately $2000 more for medical expenses which he claimed were necessitated by the rock hitting his head. They arose in this fashion: For many years, prior to June 17, 1960, husband had a duodenal ulcer. According to the husband, this ulcer was under control until he was hit on the head. Thereafter, his ulcer got worse and finally had to be removed by operation in July 1962. The husband claimed that this aggravation of his ulcer was directly caused by the stress resulting from the blow on his head and, since he received nothing for it, the verdict was inadequate. The verdict returned can easily be supported on the basis that the jury found that the blow to his head did not aggravate his ulcer. Absent such aggravation, the verdict is patently adequate and we will not reverse the lower court's discretion in refusing a new trial for inadequacy.

An examination of the lower court's charge, however, reveals a number of errors of law on causation and damage which require us to grant a new trial. We will reverse the lower court's discretion in granting or refusing a new trial where there was an error of law which controlled the outcome of the case. Izzi v. Philadelphia Transp. Co., 412 Pa. 559, 195 A.2d 784 (1963).

The major damages claimed by the husband for his personal injuries were based on aggravation of the existing ulcer. If proven to have been caused by the blow to the head, it is clear that the husband can recover for such aggravation. As was said in Heck v. Beryllium Corp., 424 Pa. 140, 143, 226 A.2d 87, 90 (1966): "Once a finding of negligence became permissible, defendant became 'liable for all harm caused by ...


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