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JEFFREY E. CARL v. DANIEL A. KURTZ AND KENNETH R. KURTZ (04/28/78)

decided: April 28, 1978.

JEFFREY E. CARL, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, JOHN R. CARL AND BERYL E. CARL, AND JOHN R. CARL AND BERYL E. CARL IN THEIR OWN RIGHT, AND MICHAEL W. RHODE, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, PATRICIA K. RHODE AND PATRICIA K. RHODE, IN HER OWN RIGHT, APPELLANTS,
v.
DANIEL A. KURTZ AND KENNETH R. KURTZ, DEFENDANTS, AND JEFFREY E. CARL, DEFENDANT



COUNSEL

Edward F. Silva, Philadelphia, for appellants, at No. 37, and appellees, at No. 91.

David M. Kozloff, Eves & Kozloff, Wyomissing, for defendants, Kurtz.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 255 Pa. Super. Page 201]

On April 11, 1972, at approximately 9:30 P.M., appellants Jeffrey E. Carl and Michael W. Rhode were traveling on a motorcycle north on White Oak Street in Kutztown, Pennsylvania. Carl was operating the cycle, Rhode was a passenger. At the intersection of White Oak and Main Streets, appellants' motorcycle collided with a Volkswagon driven by Daniel A. Kurtz, traveling south on White Oak Street, when Kurtz attempted to make a left-hand turn. The intersection was controlled by a traffic light which was green at the time of the accident for traffic on White Oak Street.

Both vehicles were damaged in the accident, and appellants suffered personal injuries as a result of being thrown from the motorcycle. They filed claims for personal injuries against Daniel Kurtz, the driver of the Volkswagon, and against Kenneth Kurtz, the brother of Daniel Kurtz and the owner of the automobile. Additionally, Carl asked for property damages for his motorcycle. Kenneth Kurtz asserted a claim against Carl for the damages to his auto, and Daniel and Kenneth Kurtz joined Carl as additional defendant on Rhode's claim.

The lower court directed a verdict in favor of Kenneth Kurtz, the owner of the Volkswagon, deciding as a matter of law that no agency relationship existed between him and Daniel Kurtz, the driver. The jury verdict was against Carl, the cyclist, holding him liable for both the personal injuries to Rhode, his passenger, and the property damage of Kenneth Kurtz. Carl and Rhode filed motions for a new trial and the case was argued before the court en banc. Following the denial of this motion, Messrs. Carl and Rhode appealed.

This court's role on appeals from the denial by trial court of a motion for a new trial is clear. The decision of the trial court on this point will be reversed only for a clear abuse of discretion or for misapplication or misconception of the law. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Kralik v. Cromwell, 435 Pa. 613, 258 A.2d 654 (1969);

[ 255 Pa. Super. Page 202]

    a party opponent. A comparable situation can be found in Beardsley v. Weaver, 402 Pa. 130, 166 A.2d 529 (1961). In that case the passenger of an automobile sued the driver for injuries the former sustained. The Supreme Court was asked to rule on the admissibility of a statement given by plaintiff to defendant's insurance carrier. In the statement, plaintiff stated that the roughness of the railroad tracks caused the accident and, furthermore, that she knew of the condition but did not warn defendant. The court ruled,

"The writing was admissible as a declaration against interest and as an admission on plaintiff's part that the act of another, rather than the defendant, was the causative negligence of the accident. It was substantive evidence in itself." 402 Pa. at 132, 166 A.2d at 530.

Using the same reasoning as found in Beardsley, Rhode's statement undermines his case against Kurtz.

Had Carl objected to the introduction of Rhode's alleged statement, we might be confronted with the questions of whether Carl can be bound by Rhode's remark. However that issue is not before this court because Carl neglected to protest the introduction of Kurtz's testimony on this point. It is well established that a claim is not properly preserved for appeal where objection was not raised at trial. Benson v. Penn Central Transp. Co., 463 Pa. 37, 342 A.2d 393 (1975); Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966). Basic and fundamental error cannot be recognized as a ground on appeal unless a specific objection was raised by counsel at trial. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 ...


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