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SMALICH ET AL. v. WESTFALL (10/09/70)

decided: October 9, 1970.

SMALICH ET AL., APPELLANTS,
v.
WESTFALL



Appeal from order and judgments of Court of Common Pleas of Westmoreland County, Jan. T., 1966, No. 925, in case of Marco Smalich, executor of estate of Julia Smalich, deceased, et al. v. Felix Rush Westfall et al.

COUNSEL

Morton B. DeBroff, with him David R. Gold, for appellant.

Carl E. Fisher, with him Robinson, Fisher & Long, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell concurs in the result. Concurring Opinion by Mr. Justice Roberts.

Author: Eagen

[ 440 Pa. Page 410]

Two automobiles collided in Westmoreland County. One of the vehicles, owned by Julia Smalich, was operated by Felix Rush Westfall. Julia Smalich and her minor son, Michael, were passengers in this automobile at the time. The other vehicle involved was operated by Stephanna Louise Blank. Julia Smalich suffered injuries in the collision which caused her death. Michael Smalich was injured, but recovered.

This action in trespass was later instituted, naming both Westfall and Blank as defendants. The estate of Julia Smalich sought damages in both a wrongful death action and a survival action. Marco Smalich, the guardian of the minor, claimed damages for the minor's

[ 440 Pa. Page 411]

    injuries on behalf of the minor and on his own behalf as guardian.

At trial, the jury returned a verdict in favor of all plaintiffs and against both defendants. Damages were awarded in the wrongful death action in the sum of $1025; in the survival action in the sum of $2000; in the guardian's action in the sum of $166.50; and in the minor's action in the sum of $20,000. Post-trial motions were timely filed by defendant Blank, seeking judgment notwithstanding the verdict in the actions on behalf of the Smalich Estate and a new trial in the actions on behalf of the minor and the guardian. Both motions were granted by the court en banc below. The plaintiffs appealed.

The Minor's Action

In this instance, the court below awarded a new trial because it concluded that the verdict was against the weight of the evidence, and was also excessive. We have said many times that the grant of a new trial lies within the inherent power of the trial court, and on appeal we will not interfere with the exercise thereof, unless there has been a clear abuse of discretion or an error of law which necessarily controlled the grant of the new trial: Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969); Getz v. Balliet, 431 Pa. 441, 246 A.2d 108 (1968); Guzman v. Bloom, 413 Pa. 576, 198 A.2d 499 (1964). An examination of the record fails to persuade us that the court abused its discretion in awarding a new trial in the actions involving the minor's injuries, and we will, therefore, affirm its order in this respect.

Actions on Behalf of the Estate

The trial jury found that Westfall's negligent operation of the Smalich automobile was a proximate

[ 440 Pa. Page 412]

    cause of the collision. That the trial record amply supports this finding is not and cannot be questioned. After trial, the court en banc ruled that, under the facts, the contributory negligence of Westfall must be imputed to the owner of the automobile as a matter of law, and this precluded recovery by the Smalich Estate against defendant Blank. This conclusion of the court below was based on our ruling in Beam v. Pittsburgh Railways Co., 366 Pa. 360, 77 A.2d 634 (1951), and admittedly was clearly dictated by that decision.

In Beam we held that where the owner of an automobile is present while it is being negligently operated by another, there is a presumption that the owner of the vehicle has the power to control it, and, in the absence of evidence to the contrary, a relationship of principal and agent or master and servant exists between the owner and driver, because of which the driver's contributory negligence is imputed to the owner, barring the owner from recovering for injuries caused by the negligence of a third person. In considering the instant case, we have re-examined Beam and ...


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