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KINCHER v. HUBER (06/28/71)

decided: June 28, 1971.

KINCHER, APPELLANT,
v.
HUBER



Appeal from order of Court of Common Pleas of Northampton County, May T., 1967, No. 20, in case of Harold Kincher v. Frank Huber and Curtis Hughes.

COUNSEL

Francis H. S. Ede, with him William H. Agnew, for appellant.

Jackson M. Sigmon, for appellee.

Edward H. McGee, for appellee.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 443 Pa. Page 210]

This case arises out of injuries caused by an automobile accident on March 12, 1966. Appellant, Harold Kincher, a passenger in a car driven by Curtis Hughes, one of appellees, was seriously injured when the Hughes car collided with a pickup truck driven by Frank Huber, the other appellee.

Kincher's injuries included a fractured left femur, a broken smaller bone in the left leg, several fractured ribs, a collapsed right lung and various lacerations and contusions. Mr. Kincher spent almost a full year in a hospital, was in traction for three months, in a body cast for two months, and wore a leg brace for six months. Permanent effects of the injuries include a 5/8 inch shortening of the left leg, atrophy of the left thigh, and a fifty degree limitation of motion of the left knee.

Appellant brought suit against both Hughes and Huber, and this action was tried together with an action brought by Hughes, appellant's driver, against Huber. The jury returned a verdict of $50,000 in favor of Kincher against Huber and Hughes, and in the case of Hughes v. Huber, returned a verdict in favor of Huber.

[ 443 Pa. Page 211]

At the time of the accident, Kincher was a senior chief storekeeper with the United States Navy, with some sixteen years of service. Consequently, the Navy paid all of his medical bills. He was also paid his wages during his entire period of convalescence, and he later returned to full duty.

Despite the fact that Kincher made no claim for loss of earning capacity as a result of the accident, the trial court charged the jury at length on that element of damages as well as the method of determining future lost earnings and the reduction of that sum to present worth. At the conclusion of the charge, counsel informed the court that no claim was made for permanent loss of earning power and that life expectancy tables had been introduced only in relation to the possible duration of pain and suffering and the permanent injuries. The court then attempted to correct its mistake as follows:

"First of all, with respect to the most recent subject that I discussed with you, that of damages, I led off into this area dealing with the loss of earning ...


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