charge submitted by defendant Lumbermens.
The other issue stems from Lumbermens' allegation that it was prejudiced in its case against Harris by the fact that verdicts were directed in favor of the two Estates. Professor Moore has stated in 5 Moores Federal Practice P50:02, n. 7 that: 'Where no evidence is adduced to disprove the prima facie case of the plaintiff and his evidence stands uncontradicted and unimpeached, the court should direct (a verdict).' This is precisely what was done in the instant case. Lumbermens' contention, in essence, is that a verdict may never be directed in multiple party litigation without creating prejudicial error. I know of no such rule. The well established practice is directly to the contrary. In the instant case the court made it clear beyond question to the jury that while Dutcher was incompetent to testify against the two Estates, he was a competent witness against Harris. The jury was also instructed that Harris as plaintiff had the burden of proof on the issue of permission. These instructions were sufficient to protect Lumbermens' interests in the Harris case. I must assume, in the absence of evidence to the contrary, that the jury followed those instructions. There is nothing to indicate that it did not.
Apart from the lack of substance to the allegation of prejudice, Lumbermens itself was responsible for the very state of the record of which it now complains. After having joined the additional plaintiffs and defendant, it vigorously and successfully contested the motion of the Lynch Estate to sever those additional parties. Moreover, Lumbermens rejected a number of suggestions designed to avoid this very situation, including one suggestion that the issue be submitted to the jury as to all plaintiffs with the proviso that Estate plaintiffs be given full opportunity to cross-examine without thereby waiving their position as to incompetence under the Dead Man's Act. Lumbermens created the multiple party situation and rejected all efforts to eliminate the problems caused by the joinder. It cannot be heard now to complain of prejudice.
Lumbermens' motion for a new trial against Harris is denied.