Appeals from judgments of Court of Common Pleas of Beaver County, No. 365 of 1967, in re Cindy Idzojtic, a minor by her parent and natural guardian, Nick Idzojtic and Nick Idzojtic, individually v. Olga Catalucci and Michael Catalucci.
Edward A. Mihalik, with him John Alan Conte, and Conte, Courtney, Tarasi & Price, for appellants.
Gretchen Sohn Reed, with her Samuel C. Holland, and Panner, Holland and Autenreith, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.
[ 222 Pa. Super. Page 48]
This is an action by the father of Cindy Idzojtic, a six year old minor, to recover damages as her guardian, for the injuries Cindy sustained in a fall and to recover in his own right for the loss and expenses sustained as a result of her injuries.
[ 222 Pa. Super. Page 49]
Cindy fell down the steps of neighboring defendants' premises after her shoe caught on the warped and buckled floor of the defendants' porch where she had been playing with other children. Cindy sustained a spiral fracture of her left tibia. Suit was instituted against the defendant property owners on the theory that they were negligent in their maintenance and repair of the porch.
The jury returned a verdict in favor of the minor in the amount of $300 but entered a verdict in favor of the defendants in the father's claim for his loss and expenses. Motions for new trial were filed in both causes of action, but were refused by the court below. This appeal followed.
An important issue presented in this appeal is whether or not the father-plaintiff can recover against the third-party tortfeasors for the losses and expenses incurred by him as a result of his child's injuries where the jury by its verdict has found the mother's negligence to have contributed to the child's injuries. There was evidence in this case that the child's mother at some indefinite time prior to her daughter's fall had visited the premises in question and would have had occasion, therefore, to observe the condition of the porch on which she had permitted her daughter to play. The court charged the jury that if the jury found the mother contributorily negligent, her negligence would be imputed to the father and preclude him from recovery.
By its own verdict in favor of the defendants in the father's action in his own right, the jury obviously found the mother contributorily negligent and imputed that negligence to the father. The court below held this not to be error, saying: "A parent is barred from recovery for harm to his legally protected interest in his child by the contributory negligence of the other
[ 222 Pa. Super. Page 50]
parent. Connelly v. Kaufmann & Baer Co., 349 Pa. 261 (1944). Riesberg v. Pittsburgh and Lake Erie Railroad, 407 Pa. 434 (1962)." It is our determination, however, that an application of the Supreme Court's decision in Smalich v. Westfall, 440 Pa. 409 (1970), now calls for a result different from that reached in the two cases relied upon by the court below. The court in Smalich enunciated the rule that ". . . a plaintiff ought not to be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person: Prosser, The Law of Torts § 73 (3d ed. 1964). See also, Restatement (Second), Torts §§ 485, 486 and 491 (1965)." There is no rule of law in Pennsylvania which makes a husband vicariously liable for the negligent acts of his wife. Certainly, such was not the intendment of the Act of June 26, 1895, P. L. 316, Sec. 1, as amended, May 13, 1925, P. L. 638, § 1, 48 P.S. § 91, which provides: "The father and mother shall have a joint right of action for injuries to their minor child, for the loss of its services and expenses incidental thereto, and either the father or mother shall have the right to sue therefor in the name of both. In case the father and mother live apart the action shall be maintained by the parent having the custody of the child and the control of its services." The 1895 Act merely states what ...