*2 PRINCE, Before MONTGOMERY, HESTER and JJ. MONTGOMERY,Judge: in
This action trespass, by the a brought parents of minor in child, child their own behalf and on behalf of the resulted in a for the parent plaintiffs, J. and Betty Gould, in their own right against defendants, the original Nickel, Sr. Joan E. Nickel and against Keith Miller, one of defendants, the additional but no damages were to allowed the minor plaintiff, John Gould. Harvey Directed verdicts in had been entered favor of the other defendants, additional Miller, Jake J. and Aileen M. plaintiff J. Gould as additional defendants at the plaintiffs’ close of evidence.
Although trial judge stated that the verdicts were returned, inconsistent in the form they were he accepted them nevertheless. Subsequently, defendants filed mo- tions to mold the verdict as to the claim of the minor plaintiff favor; to read as in being rendered their and the minor plaintiff filed motion for a new trial limited to damages. Defendants’ motion to mold the verdict was granted and the verdict was molded to “In read favor of the defendants, against Frank R. Nick- el, Nickel, wife, Sr. and the additional defendant, Miller, $1500.00, Keith in sum of favor defendants, Nickel, Sr., Frank E. and Joan E. wife, defendant, Keith and against a minor.” Judgments were entered After oral accordingly. argument and consideration of briefs, the minor plaintiff’s motion a new trial was denied and he filed the sole appeal litigation in this which is now before us. a snowball arose out of of action
These causes March (Nickel) property on defendants’ that occurred 8, was then age minor plaintiff, where the when and Keith then thrown a snowball eye by struck age us the claim to is that
The only argument presented of their of the conduct of the was “derivative” inconsistent, compelling the verdicts were so that this court rejected The lower new trial. Little, 407 Pa. of Meisel v. authority on the argument Rule Civil (1962). Pennsylvania 2228(b)1 provides: death, upon is inflicted resulting
If an injury, accrue minor, action therefore of a and causes of person and also to the in one action shall be enforced *3 sue therefor may Either parent and the child. parents the both; if live parents apart but the name of custody the having action shall be of its services. of the child and the control of while the causes establishes that clearly Our case law tried, remain be to be required jointly action may Little, Della Meisel v. supra; distinct causes of action. See 218, (fn. Ehrlich (1938) 1); v. 332 Pa. Floyd, casse Stiefel, (1928). 406 Pa.Super. v. 94 with to be on all fours
The case appears present an from Therein, arising three actions of trespass Ehrlich. of minors were filed on behalf three involving in favor Verdicts were rendered their parents. minors and of but in favor as to the minor plaintiffs of the defendant them in connection moneys expended by new trials sought minors The injuries. with their children’s that Holding the verdicts. of the inconsistencies of because from those were distinct the actions of the existed in the minors, inconsistency that no it was concluded suspended superseded the Act of 1. The Rule of Civil Procedure 12, 1897, set 1625 1626 which May 1 12 P.S. §§ P.L. §§ procedure. forth the same 186 new
verdicts and trials were refused. In Rebic v. Gulf Co., 186 Refining Pa.Super. (1936) A. 236 we fol- lowed Ehrlich.
The appellant commentary cites a Goodrich-Amran 2228(b) Rule of Civil it which is stated that right of is derivative and be should determined at child; the same time as the right and the case of Parker Ryan, D. & which (1957), C.2d the same This thought expressed. unfortunate use of the word was Little, derivative the court rejected by in Meisel v. supra, and cannot be as a factor in this accepted governing course, case. Of right parent is consequence accident to their but it is not “derived” from his action.
It thus that appears any in a verdict or inconsistency be in independent verdicts must each action and not between separate verdicts in and distinct In actions. the present case, the be must found to exist in the inconsistency action of the minor plaintiff and not between it the separate action of the parents.
We no find the minor’s verdict. The jury was instructed that it find the might guilty of contributory and if it it negligence, might did deny to him. The that the recovery fact did not charge include the further instruction that the minor’s negligence might be imputed to the for that prevent reason recovery on their have been error part, may but such as to prejudice the defendants and No excep- tions were taken to charge nor by any to the party *4 acceptance verdicts as rendered nor have jury; the defendants taken an appeal judgment entered on that verdict. The fully supported by such a which is in finding with the compliance instructions and supported by the evidence.
Appellant seeks a new trial question of dam- ages. In the face of a sustainable verdict for the defend- ants, this is not Again allowable. it is based on the false premise that verdicts rendered these case it. justified two appellee
Judgment is affirmed. John Gould of the minor case HESTER, statement. J., dissenting filed HESTER, dissenting: Judge, as the minor trial a new
I I would dissent. 407 A.2d Pennsylvania
COMMONWEALTH Turk, Appellants. TURK, Turk, and Edward David Peter Court Oct. 25, 1979. Jan. Appeal Denied Petition for Allowance of