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SHERIN v. DUSHAC (07/17/61)

July 17, 1961

SHERIN
v.
DUSHAC, APPELLANT.



Appeal, No. 120, March T., 1961, from judgment of Court of Common Pleas of Beaver County, Sept. T., 1959, No. 335, in case of Richard Sherin v. Joseph Dushac. Judgment affirmed.

COUNSEL

Robert L. Orr, with him Harold F. Reed, Jr., and Reed, Ewing, Orr & Reed, for appellant.

John D. Ray, with him Ray & Good, for appellee.

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

Author: Bok

[ 404 Pa. Page 497]

OPINION BY MR. JUSTICE BOK.

This case, begun in trespass, ended in a judgment following a verdict in plaintiff's favor for $25,000. Defendant filed a motion for a new trial, which was overruled, and consequently appealed after judgment.

As the case involves defendant's car striking the plaintiff's halted car in the rear, liability is admitted and the two questions before us have to do with damages. The main one has an odd twist. Defendant wanted to cross-examine the plaintiff about his loss of earning power and sought to do so by referring to his

[ 404 Pa. Page 498]

    income tax returns, which had been produced by earlier depositions. To this plaintiff objected, and when the battle lines were cleared it became apparent that defendant wanted plaintiff's damages to depend on his profits, or the lack of them, while plaintiff wanted to establish his loss of earning power as a day laborer, at a wage of $2.25 per hour.

The facts behind this unusual position are that the plaintiff was in the roofing and heating business for himself. He had his son and two other boys as helpers, and he worked as a laborer with them. The work required heavy lifting. They averaged 50-hour weeks throughout the year, balancing work that was light in winter against heavier work in summer. Plaintiff's average weekly wage was $105.

His injury consisted of an injured back: the fifth lumbar vertebra appeared to have moved forward. Some areas of the spine were not solid bone, which occurs in four to five per cent of people, and plaintiff had had a low back injury in 1947 and a fractured vertebra from an accident in 1955. According to the medical testimony, the condition resulting from the instant injury would last for a considerable time in the future, and the plaintiff should not engage in sustained heavy physical effort, which he said pained him when he tried it and persisted. His doctor advised a spinal fusion, a major operation with from 75 to 90% chances of success, but the plaintiff resisted the suggestion. The seriousness of the operation, the reasonableness of plaintiff's resistance to it, together with the other factors in the case, were before the jury. Special damages came to $608.17, and the operation, with doctor's fees and hospital charges, would be $1100.

The plaintiff's theory was that as the result of the accident he had lost his earning power as a laborer, and as his business was conducted by manual labor his loss of ...


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