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HARVEY JOHN GOULD v. FRANK R. NICKEL (07/25/79)

decided: July 25, 1979.

HARVEY JOHN GOULD, A MINOR, BY AND THROUGH ROY J. GOULD AND BETTY J. GOULD, HIS PARENTS, AND ROY J. GOULD AND BETTY J. GOULD, HIS WIFE, APPELLANTS,
v.
FRANK R. NICKEL, SR., AND JOAN E. NICKEL, HIS WIFE AND KEITH MILLER, AND JAKE J. MILLER AND AILEEN M. MILLER, HIS WIFE AND ROY J. GOULD AND BETTY J. GOULD



No. 929 April Term, 1978, Appeal from the Judgment entered April 24, 1978, of the Court of Common Pleas of Butler County, Pennsylvania, Civil Division-Law, at A.D. No. 76-323.

COUNSEL

Donald D. Doerr, Butler, for appellants.

William C. Robinson, Butler, for appellees Nickel.

John E. Hall, Pittsburgh, for appellees Miller.

Prince, Hester and Montgomery, JJ. Hester, J., filed a dissenting statement.

Author: Montgomery

[ 268 Pa. Super. Page 184]

This action in trespass, brought by the parents of a minor child in their own behalf and on behalf of the child, resulted in a verdict for the parent plaintiffs, Roy J. and Betty J. Gould, in their own right against the original defendants, Frank R. Nickel, Sr. and Joan E. Nickel and against Keith Miller, one of the additional defendants, but no damages were allowed to the minor plaintiff, Harvey John Gould. Directed verdicts had been entered in favor of the other additional defendants, Jake J. and Aileen M. Miller, and plaintiff Betty J. and Roy J. Gould as additional defendants at the close of plaintiffs' evidence.

Although the trial judge stated that the verdicts were inconsistent in the form they were returned, he accepted them nevertheless. Subsequently, the defendants filed motions to mold the verdict as to the claim of the minor plaintiff to read as being rendered in their favor; and the minor plaintiff filed a motion for a new trial limited to damages. Defendants' motion to mold the verdict was granted and the verdict was molded to read "In favor of the plaintiff parents and against the defendants, Frank R. Nickel, Sr. and Joan E. Nickel, his wife, and the additional defendant, Keith Miller, in the sum of $1500.00, and in favor of the defendants, Frank E. Nickel, Sr., and Joan E. Nickel, his wife, and additional defendant, Keith Miller, and against Harvey John Gould, a minor." Judgments were entered accordingly. After oral argument and consideration of briefs, the minor plaintiff's motion for a new trial was denied and he filed the sole appeal in this litigation which is now before us.

[ 268 Pa. Super. Page 185]

These causes of action arose out of a snowball accident that occurred on defendants' (Nickel) property on March 30, 1975, when and where the minor plaintiff, then age 8, was struck in the eye by a snowball thrown by Keith Miller, then age 16.

The only argument presented to us is that the claim of the parents was "derivative" of the conduct of their minor son, so that the verdicts were inconsistent, compelling the grant of a new trial. The lower court rejected this argument on the authority of Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962). Pennsylvania Rule of Civil Procedure 2228(b)*fn1 provides:

If an injury, not resulting in death, is inflicted upon the person of a minor, and causes of action therefore accrue to the minor and also to the parent or parents of the minor, they shall be enforced in one action brought by the parent or parents and the child. Either parent may sue therefor in the name of both; but if the parents live apart the action shall be brought by the parent having the custody of the child and the control of its services.

Our case law clearly establishes that while the causes of action may be required to be jointly tried, they remain distinct causes of action. See Meisel v. Little, supra; Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 ...


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