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HENRY S. WESTRA AND KATHRYN WESTRA v. MICHAEL BENNICK (11/22/76)

decided: November 22, 1976.

HENRY S. WESTRA AND KATHRYN WESTRA, APPELLANTS,
v.
MICHAEL BENNICK



Appeal From the Judgment Entered August 21, 1975, by the Court of Common Pleas, Civil Action, Law, of Northumberland County at No. 548 September Term, 1971. No. 118 October Term, 1976.

COUNSEL

Robert L. Walsh, Sunbury, with him Leonard R. Apfelbaum, Sunbury, for appellants.

Thomas E. Boop, Sunbury, with him Carl Rice, and Rice & Rice, Sunbury, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., concurs in the result. Hoffman, J., files a concurring opinion. Price, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Watkins

[ 245 Pa. Super. Page 259]

This is an appeal from the judgment of the Court of Common Pleas of Northumberland County in a trespass action entered on an order molding a jury verdict returned in the amount of $5,516.96 in favor of the plaintiff-appellant, Henry S. Westra, and against the defendant-appellee, Michael Bennick, to the amount of $2,755.

The trespass action was instituted by Henry S. Westra and Kathryn Westra, his wife, to recover damages resulting from an accident involving a Chevrolet truck owned by Henry and operated by Kathryn and a Pontiac automobile owned and operated by Michael Bennick. Henry's claim was for damages to his truck and for Kathryn's medical expenses and loss of her society. Kathryn's claim was for pain and suffering, loss of wages and permanent injury.

The accident occurred on August 9, 1970 on state highway Route 890 when the truck driven by Kathryn on her own business with a passenger, not here involved, struck a tree in trying to avoid the Bennick vehicle as it entered the highway from a private road on Bennick's property. The Westra theory was that Michael negligently entered Route 890, causing Kathryn to veer off the highway into the tree. The Bennick theory was that Kathryn caused the accident by negligently operating the Chevrolet truck, with no fault on the part of Michael as he entered Route 890. The jury was properly instructed that any

[ 245 Pa. Super. Page 260]

    negligence on Kathryn's part was not imputable to Henry. Toenges v. Schleihauf, 368 Pa. 247, 82 A.2d 15 (1951).

The court pointed out in his opinion that he charged as follows:

"The Trial Judge explained to the jury that there were three possible findings that could be made. (1) If it was concluded that there was no negligence on the part of Michael, the verdict should be for Michael. (2) If it was concluded that Michael was negligent and that Kathryn was also negligent, the verdict should be for Henry. (3) If it was concluded that Michael was negligent and that Kathryn was not negligent, the verdict should be for Henry and for Kathryn separately. The jury returned a verdict 'for the plaintiff-husband, Henry S. Westra, in the amount of $5516.96'."

At the time of the return of the verdict of the jury there was no objection made to it on the record by either party. Later, however, appellee moved the trial judge to mold the verdict of the jury to decrease the amount from $5,516.96 to $2,755, or, in the alternative, to delete all amounts attributable to any derivative claim of Henry. The court below granted a rule on plaintiffs to show cause why the verdict should not be molded and after a responsive answer, the court entered its ...


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