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KIM L. ARMACOST v. HARRY WINTERS (10/20/78)

decided: October 20, 1978.

KIM L. ARMACOST, A MINOR BY HER PARENTS AND NATURAL GUARDIANS, JOHN K. ARMACOST AND YVONNE M. ARMACOST AND JOHN K. ARMACOST AND YVONNE M. ARMACOST, APPELLANTS,
v.
HARRY WINTERS



No. 294 MARCH TERM, 1977, Appeal from Judgment of the Court of Common Pleas, Civil Division-Law, of York County, at No. 410 January Term, 1974.

COUNSEL

William B. Anstine, Jr., York, for appellants.

Michael Jay Brillhart, York, for appellee.

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

Author: Van Der Voort

[ 258 Pa. Super. Page 426]

Appeal is taken following the Order of the lower court dismissing plaintiffs' motions for judgment n. o. v. and new trial. Verdict had been rendered for defendant after jury trial. At issue to a large degree during trial testimony, and the sole question before us on appeal, is the bar of the statute of limitations to the complaint.

On May 3, 1970, the minor plaintiff was injured while riding in her parents' automobile when it was impacted by the vehicle of defendant. Immediately after the occurrence, the minor complained of headaches. She sought treatment at a local hospital and from the family physician. The doctor testified that he considered her condition of frequent headaches to be caused by migraine symptoms, or by poor vision, or by congestion in the sinuses, or by a viral illness.

[ 258 Pa. Super. Page 427]

These possible causes were checked and overruled during the minor plaintiff's many visits to this physician in the years from the accident until 1973. The minor herself testified to the constancy of headaches after the accident, and to her numerous complaints regarding them. Her mother corroborated this testimony.

It was not until July of 1973 that the child was examined and tested by another physician whose opinion it was that the frequently recurring headaches were causally related to the May 3, 1970, accident and injury. Based upon this opinion, plaintiffs filed their complaint on December 10, 1973, averring that they had been unable to determine that these headaches were causally related to the accident until the examination on July 29, 1973, produced such a diagnosis. Causation was alleged and damages sought.

In answer to the complaint, defendant raised the two-year statute of limitations for personal injury claims. Act of 1895, June 24, P.L. 236, 12 P.S. ยง 34. At trial, defendant admitted liability for the accident, but did not waive reliance upon the statute of limitations as a bar to plaintiffs' claim. In its charge to the jury, the lower court, in addition to pointing out the possible verdicts for plaintiffs, instructed the jurors as to the law regarding the statute of limitations and the possibility of a verdict for defendant if they believed that plaintiffs had not acted reasonably in considering a connection between the accident and the minor's headaches.*fn1 A verdict for defendant was returned.

Appellants now argue that they had no reason to suspect that the child's headaches had been caused by the accident until the examination and opinion of the physician in July ...


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