6 A.2d 787 | Pa. | 1939
Plaintiff, Gladys Hamilton, brought this action in trespass to recover damages for personal injuries suffered by her as a result of being struck by an automobile driven by defendant. At the conclusion of the trial the jury rendered a verdict in favor of the plaintiff in the sum of $6,623.86 and the defendant thereupon filed motions for judgment non obstante veredicto and for a new trial. The motion for judgment n. o. v. was dismissed, but the court directed the plaintiff to remit all in excess of $5,323.86 upon condition that a new trial be granted if she failed to do so. A remittitur was filed and judgment was entered in favor of the plaintiff in the reduced sum. From this judgment defendant appealed.
Following the entry of the judgment, defendant by her father and next friend filed a petition to strike off the judgment on the ground that she was a minor and that no guardian ad litem had been appointed to represent her in the litigation. The court granted a rule to show cause why the judgment should not be stricken off, to which plaintiff filed an answer. From this answer and the stipulation joined in by plaintiff and defendant, it appears that defendant is a minor and that no guardian ad litem had been appointed prior to the entry of judgment. It further appears that the car which defendant was driving at the time of the accident was owned by her father and was being driven with his consent. The father carried liability insurance which protected any person driving his car with his consent. *435
After suit was instituted by the plaintiff, notice was given to the insurance carrier. Service of process was made upon defendant and thereafter counsel, retained by the Insurance Company, entered an appearance on behalf of the defendant and assumed complete charge of the litigation.
Following the argument on the petition and answer together with the stipulation setting forth the above facts, the court below discharged the rule to show cause and appointed a guardian ad litem. The guardian was directed to make a thorough examination of the litigation, with leave to apply to the court to open the judgment if the interests of the minor required such action. The guardian filed a report setting forth that the minor had been ably represented throughout the litigation and that her interests (as distinct from those of the Insurance Company, which was the real party in interest in the litigation) would be served by permitting the judgment to remain undisturbed. The court below approved this report. Defendant by her father and next friend appealed from the order discharging the rule to show cause and with the consent of this Court, this appeal and the appeal from the judgment against defendant were consolidated.
We may dispose without difficulty of the question whether the judgment is valid, for we are convinced that under the circumstances of this case the defendant cannot now successfully challenge the validity of the judgment rendered against her.* She contends that the judgment is absolutely void and hence should be stricken *436
from the record. It is true that when it appears that a minor defendant is not represented by a guardian ad litem, it is the duty of the court to see that the proceedings are held in abeyance until a guardian is appointed, and that ordinarily where no guardian has been appointed a verdict, judgment, or decree will be set aside and a new trial granted: Silver v.Shelback, 1 Dall. 165; Brown v. Downing,
In none of these decisions is it held, however, that a verdict, judgment, or decree against a minor defendant not represented by a guardian ad litem is totally void and incurable. In Brown v. Downing, supra, and in Mitchell v.Spaulding, supra, the court did decide that the judgments there were void, but in each instance the plaintiff had failed to make proper service on the minor and this fact prevented the court from acquiring jurisdiction. In Ohlweiler v. Ohlweiler, supra, the court expressly ruled that a judgment against a minor not represented by a guardian ad litem is voidable only. This view is supported by numerous decisions in other jurisdictions: King v. Wilson,
In the instant case defendant and the attorneys representing her knew that no guardian ad litem had been appointed, but made no effort at trial to call this to the court's attention. There is no indication that either the plaintiff or the court was aware of defendant's infancy. In the cases cited by defendant the court has shown a solicitude for the welfare of those who are regarded in the law as being unable to care for their own well-being, and in those cases the best interests of the minor required that the judgment or decree be set aside. Here the defense presented on defendant's behalf was as ably and effectively conducted as it would have been had a guardian been appointed prior to the trial. No substantial *437 rights of the minor were denied her; on the contrary the court, upon learning that defendant was not of age, appointed a guardian to make certain that her interests had been protected. The guardian, advised the court that it is to her interest to allow the judgment to stand. In view thereof we are of opinion that the court below properly dismissed the petition to strike off the judgment.
This conclusion finds full support in the decisions of other courts. Thus in La Bell v. Quasdorf,
Passing to the merits of the case, we are convinced that there is no basis for defendant's contention that plaintiff was guilty of contributory negligence as a matter of law. The record, viewed in the light most favorable to plaintiff, reveals the following facts: On the evening of December 20, 1935, during a heavy snowstorm, plaintiff parked her car on the east side of North Bennett Street, in the City of Bradford, facing north, approximately 75 feet to the north of the intersection of North Bennett Street and Interstate Parkway. After looking to see that no car was approaching from the rear she alighted from her car, intending to cross the street to the west side. Before starting across the street she again looked in both directions and saw no car on the highway. As she walked she continued to look for approaching cars. When she was within two or three steps of the westerly side she was struck by the front left fender of defendant's automobile which was coming from the south, and was dragged for a distance of approximately *438 20 feet. At this point plaintiff was thrown against the westerly curb, and defendant's car continued another 30 feet before it could be brought to a stop.
Although a pedestrian who crosses a street between intersections must exercise a higher degree of care for his safety than one who crosses at an intersection: Johnson v.French,
We cannot say as a matter of law that she was bound to anticipate that one coming from the south would be driving along the westerly curb, and hence that she was bound to look again in that direction. When plaintiff was so close to the westerly curb, it was more likely she would be looking to the right to escape being struck by cars approaching from the north. In this respect the present case is ruled by our decision in Lamont v. Adams Express Co.,
The court below therefore properly dismissed defendant's motion for judgment n. o. v. On the return of the record to the lower court it should be amended to read Gladys Hamilton v. Joseph R. Carvolth, Guardian ad litem for Martha Moore, a minor.
Judgment affirmed and order dismissing the petition to strike off the judgment affirmed.