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PRICE ET AL. v. YELLOW CAB COMPANY (06/01/71)

decided: June 1, 1971.

PRICE ET AL., APPELLANTS,
v.
YELLOW CAB COMPANY



Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1959, No. 2738, in case of Pamela Ann Price a Minor, by her parents and natural guardians, Delores Price and Martin Price, and Delores Price and Martin Price, in their own right v. Yellow Cab Company and Richard Byram.

COUNSEL

Seymour I. Toll, with him B. Nathaniel Richter, and Richter, Syken, Ross, Binder & O'Neill, for appellants.

Frank M. Jakobowski, for appellee.

George P. Williams, III, with him Tom P. Monteverde, and Schnader, Harrison, Segal & Lewis, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Justice Cohen took no part in the decision of this case. Opinion by Mr. Justice Jones in support of affirmance. Mr. Chief Justice Bell and Justice Pomeroy join in this supporting opinion. Opinion by Mr. Justice Roberts, in support of reversal. Mr. Justice Eagen and Mr. Justice O'Brien join in this opinion in support of reversal.

Author: Per Curiam

[ 443 Pa. Page 59]

The judgments are affirmed by an evenly divided Court.

Disposition

Judgments affirmed.

Opinion by Mr. Justice Jones in support of affirmance:

The facts underlying these appeals concern an automobile collision on March 15, 1959, between a vehicle operated by Richard Byram and a vehicle owned by the Yellow Cab Company in which Delores Price was a passenger. At the time of the accident Mrs. Price was pregnant with the infant Pamela Price. As a direct result of the accident, Mrs. Price suffered severe personal injuries requiring prolonged hospitalization in the Frankford Hospital. Subsequently, Pamela Price was born in Lankenau Hospital on September 23, 1959, with cerebral palsy, a massive and permanent injury to her brain and body.

Originally two actions in trespass were instituted against Richard Byram and the Yellow Cab Company: one by Mrs. Price and her husband, Martin, sought to recover damages for Mrs. Price's personal injuries; the second suit by Delores and Martin Price, as parents of Pamela Price, and by Pamela in her own right sought to recover damages for Pamela's condition and related expenses allegedly caused by the accident. The first action was terminated after a general release was signed by Martin and Delores Price on October 24, 1960, and the second, the subject matter of these appeals, was allowed to continue.

Before the trial on this second action commenced, both Yellow Cab and Byram pleaded the release signed by Martin and Delores Price as a bar to any individual recovery by them in their own right for any medical or

[ 443 Pa. Page 60]

    other expenses incurred by them in connection with the condition of their daughter. By order of the court below separate trials were mandated on the issues of liability and the effect of the release. A trial by jury on the release issue was first conducted with the trial judge eventually directing a verdict in favor of Byram and Yellow Cab (appellees). Thereafter the parties agreed that no mention was to be made of the release at the second trial.

During their opening statement in this principal, albeit second, trial, the defendants-appellees admitted concurrent negligence. This trial, therefore, involved only two questions: (1) whether the infant's admitted condition of cerebral palsy was caused by the accident; and (2) if so, the amount of damages. Thereafter the jury returned verdicts in favor of the defendants-appellees. Following disposition of post-trial motions by a court en banc, judgments were entered in favor of defendants-appellees and these appeals followed.

As justification for the grant of a new trial on the issue of liability, appellants Martin, Delores and Pamela Price assign as error certain alleged irregularities committed during the principal trial: (1) the voir dire questioning concerning Jerry Wolman, the principal owner of Yellow Cab Company at the time of trial, allegedly prejudiced the jury; (2) the admission into evidence of correspondence between appellants' key medical witness and his professional liability insurance carrier was reversible error; (3) the hypothetical question asked appellees' medical witnesses omitted a material fact; and (4) statements made by appellees' counsel during closing argument constituted gross misconduct warranting a new trial. Appellants also allege that the release issue was wrongly decided and that judgment n.o.v. should be entered. Of course, any discussion of the release issue would be unnecessary

[ 443 Pa. Page 61]

    if there was no error in the conduct of the liability trial -- if the infant could not recover for her injuries, ipso facto, the parents, in their own right, could not recover for their medical and related expenses arising from Pamela's condition.

During the questioning of prospective jurors on voir dire, appellees' counsel, with the court's approval, inquired whether any of the prospective jurors favored or disliked or were creditors of Jerry Wolman. At the time of trial Mr. Wolman, a well-known sports figure and principal owner of the Yellow Cab Company, was beset by many financial difficulties and the downfall of his financial empire was widely publicized by the Philadelphia news media. Hence the argument is presented by appellants that this line of inquiry generated sympathy for Mr. Wolman, a person with no connection whatsoever in the litigation, and effectively informed each juror that a vote for defendants-appellees was a vote for Mr. Wolman. For a variety of reasons, I do not believe there is reversible error.

In Clay v. Western Maryland R. R. Co., 221 Pa. 439, 70 Atl. 807 (1908), this Court, while affirming the trial judge's refusal to permit an examination of jurors on voir dire whether they were employees or stockholders of a company unrelated to the litigation, noted that, "the better practice is to allow a general inquiry as to the direct or even contingent interest of jurors, in the result of the litigation, or in the parties to it, when there appears to be any reasonable ground to believe that some of them may have a possible interest in the result of the litigation, or in the parties, in order that an impartial jury may be selected, free from bias or interest." 221 Pa. at ...


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