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JAMES v. FERGUSON (06/29/60)

June 29, 1960

JAMES
v.
FERGUSON, APPELLANT.



Appeals, Nos. 166 and 167, March T., 1960, from judgments of Court of Common Pleas of Beaver County, March T., 1959, No. 117, in case of Odyle James et al. v. Thomas B. Ferguson, doing business as Thomas B. Ferguson Coal and Trucking Company, and Same v. Thomas B. Ferguson. Judgment affirmed. Trespass for personal injuries and property damage. Before SOHN, J. Verdict for Doyle James in amount of $70,155, and for Hoyt B. James in the amount of $1000, defendant's motion for new trial denied and judgments entered on the verdicts. Defendant appealed.

COUNSEL

Harold E. McCamey, with him Dickie, McCamey, Chilcote & Robinson, and Rowley, Smith & Rowley, for appellant.

John D. Ray, with him Ray, Good & Hudson, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Eagen, JJ.

Author: Eagen

[ 401 Pa. Page 93]

OPINION BY MR. JUSTICE EAGEN

This is an action in trespass for personal injuries suffered by plaintiff, Doyle James, and property damage by plaintiff, Hoyt B. James, as a result of an automobile collision allegedly caused by negligence of an employee of the defendant. The jury returned verdicts of $1,000 in favor of Hoyt B. James and $70,155 in favor of Doyle James. A new trial was refused and judgment entered upon the verdict. It is argued that this was error in that the verdict in favor of Doyle

[ 401 Pa. Page 94]

James was grossly excessive and that this was due in large part to substantial and prejudicial error committed by the trial judge in his charge to the jury and in the admission of certain testimony relating to the loss of earning power. No question is raised as to the sufficiency of the evidence to warrant the finding of negligence of the defendant.

The circumstances incident to the accident are as follows: On January 1, 1957, plaintiff, Doyle James, was operating a loaded International flat-bed truck owned by his brother, Hoyt, in a westerly direction on the Ohio Turnpike. The roadway was dry and visibility clear. Travelling in the same direction was a truck owned by the defendant and driven by his employee, Merle Powell. This truck was a tractor-trailer loaded with approximately seventeen tons of coal. Powell was in the process of passing the James truck when, in the rear view mirror, he saw a third truck approaching from the rear and apparently preparing to pass the truck he was driving. Powell applied the brakes and attempted to pull completely back into the extreme right lane of traffic, when the air brakes on his truck locked, the wheels slid two hundred and five feet, causing the defendant's truck to strike the rear of the plaintiff's truck with great force. The latter vehicle went off the right side of the roadway, stopping astraddle the highway fence and steel cable, after knocking down five or six six-inch steel guard-rail posts. The impact caused the legs of the plaintiff to hit the dashboard of the truck and inflicted serious injury upon him.

The injured plaintiff and his brother, Hoyt, at the time of the accident were partners in a lumber business, which consisted of cutting timber, making lumber, selling and delivering it to others for the production of barrel staves. Doyle's work consisted of operating

[ 401 Pa. Page 95]

    a bulldozer, cutting timber, loading, unloading and driving a truck. The defendant-appellant complains that the trial judge erred in admitting into the evidence testimony concerning the profits received by Doyle, in the operation of the partnership during the years 1956, 1957, 1958 and part of 1959. This evidence was not proper to show loss of earning power (Dempsey v. City of Scranton, 264 Pa. 495, 107 Atl. 877 (1919)), since the profits realized therefrom were derived from the labor and skill of several individuals engaged in the furtherance of the business. The true test was the value of plaintiff's services therein. However, it was defendant's own counsel who was responsible for this line of inquiry and who first directed questions and elicited answers in this category on cross-examination. It was, undoubtedly, pursued in order to minimize plaintiff's loss in the eyes of the jury by showing that his share of the business profits was approximately the same immediately before and subsequent to the accident. The questions by plaintiff's own counsel on redirect examination were entirely proper in view of the defendant's opening ...


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