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LEHMAN v. MCCLEARY ET AL. (09/23/74)

decided: September 23, 1974.

LEHMAN, APPELLANT,
v.
MCCLEARY ET AL.



Appeal from order of Court of Common Pleas of York County, Jan. T., 1972, No. 141, in case of Bonnie L. Lehman, Administratrix of the Estate of Leroy Gene Lehman, v. Nancy A. McCleary and Richard L. Senft.

COUNSEL

Daniel W. Shoemaker, with him John W. Thompson, Jr., and Shoemaker & Thompson, for appellant.

Peter J. Mangan, with him Russell F. Griest, and Griest & Mangan, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Hoffman, J., took no part in the decision of this case. Dissenting Opinion by Price, J. Cercone, J., joins in this opinion.

Author: Watkins

[ 229 Pa. Super. Page 510]

This is an appeal from the order of the Court of Common Pleas of York County entering a judgment n.o.v. against the verdict winner, Bonnie L. Lehman, in a survival action for the death of her husband. The jury brought in a verdict in the total amount of $27,500.00, but apportioned it by awarding $1,375.00 against the defendant Senft and $26,150.00 against the defendant McCleary. The plaintiff's attorney requested the court to mold the verdict in an effort to obtain joint and several liability against the defendants but his motion was refused and the court later granted appellees' motion for judgment n.o.v., for the reason that the medical testimony had not clearly established that the decedent was still alive when Senft's vehicle struck him. The court below further reasoned that in the event the verdict was not overturned that Senft was entitled to a new trial for damages only because of the erroneous exclusion of the results of a blood-alcohol analysis performed on the decedent.

The facts of this case are as follows:

At about 11:30 P.M. on August 20, 1970, the defendant McCleary struck the body of the plaintiff's husband with her automobile. He was lying in a prone position on the roadway at the time he was struck and had spent much of that day in various drinking establishments. A few minutes later, the defendant Senft struck the prone body with his automobile. The body had remained on the roadway while the defendant McCleary went to get her husband.

At trial, both defendants admitted hitting the decedent with their respective automobiles while he was lying in the roadway and there was no evidence to explain how the decedent reached the position where he was at the time he was struck by both cars. The issues before this Court, on appeal, are whether the court below should have molded the verdict so that both defendants

[ 229 Pa. Super. Page 511]

    would be held jointly and severally liable and whether the matter of the blood-alcohol analysis performed on the decedent should have been admitted into evidence, thereby necessitating a new trial.

We agree with the plaintiff's contention that the trial court should have molded the verdict to find defendants jointly and severally liable for the entire amount of the award. There is no evidence in this case upon which the jury could conclude that either defendant did more damage than the other. The injury to the decedent was his death and so there was only one result and the jury had no basis upon which to apportion any share of this ultimate damage.

In Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949), the court held that even in an action against joint tort-feasors, the verdict must be for a lump sum against all and that the damages could not be apportioned among them. In Longberry v. Paul, 205 Pa. Superior Ct. 435, 211 A.2d 107 (1965), we held that a court's power to amend or mold a verdict extends past the ...


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