No. 2118 October Term, 1977, Appeal from the Judgment of the Court of Common Pleas, Trial Division-Law, of Philadelphia County, at Nos. 4759 April Term, 1971 and 610 August Term, 1970.
J. Shane Creamer, Philadelphia, for appellant.
Ronald Ziegler, Philadelphia, for appellee.
Van der Voort, Watkins, and Montgomery, JJ.
[ 280 Pa. Super. Page 195]
On December 12, 1968, Mrs. Emily Thompson suffered injuries when she slipped on a piece of paper or trash and fell while descending the stairwell of a subway station owned and maintained by Southeastern Pennsylvania Transportation Authority, appellant. She died on May 3, 1970, but the testimony was conflicting as to whether her death resulted from the accident.
At the time of the accident, the police took Mrs. Thompson to a hospital where she was treated for an abrasion of the right knee and a laceration of the left shin. She made several subsequent outpatient visits to the hospital until January 15, 1969 when it was noted in her hospital record that the wounds on her legs were "almost all healed". However, she continued to visit the hospital for some time at approximately monthly intervals. On February 5, 1969, the examining doctor observed tender scabs on both legs. On March 14, 1969, there was an unhealed two-inch uninfected laceration on the shin and moderate swelling of the right knee. On June 10, 1969, she had three ulcerated sores on the right leg which were diagnosed as a traumatic infected ulcer. She returned to the hospital for treatment in August 1969. In January, 1970, while in the hospital, she bumped her left leg on a wheel chair and developed an ulcerated sore. The hospital death certificate gave the immediate cause of death as pneumonia due to infected ulcers on the left leg with sepsis due to hypertensive arteriosclerosis. A later death certificate issued by the medical examiner's office listed the cause of death as cardiac arrest due to myocardial infarction.
The litigation which grew out of the accident was tried on a two-count Complaint seeking both a wrongful death and a survivor's recovery.
In answer to certain special Interrogatories, the jury determined the appellant was liable in damages for the injuries caused by its negligent maintenance of its property but that the accident had not been the cause of Mrs. Thompson's death. It awarded damages of $34,223.85. Following
[ 280 Pa. Super. Page 196]
a hearing on post-trial motions for a judgment N.O.V. or a new trial, the trial court sustained the verdict on the condition that the appellee file a remittitur in the sum of $13,000. This was done and judgment entered for the resulting $21,223.85.
The verdict was well supported by evidence and the appellant raises no issue as to the amount of the judgment. However, appellant contends that the judgment should be vacated on the ground that the appellee was not a viable party plaintiff. This issue involved an examination of the course of pleading in this case. It is not a recommended case-book study in how it should be done.
It is to be recalled that the accident occurred on December 12, 1968 and that Emily Thompson died on May 3, 1970. A Complaint was filed on August 5, 1970 in the name of Emily Thompson and her husband, Cecil Thompson, and docketed by the trial court in its August Term, 1970 at No. 610 (hereinafter No. 610). The affidavit to the Complaint purported to bear the signature of Emily Thompson notarized on August 3, 1970. It was claimed, but not established by evidence, that Emily Thompson had signed the affidavit before her death on May 3. Her ...