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DORNON v. MCCARTHY. (11/27/63)

November 27, 1963

DORNON, APPELLANT,
v.
MCCARTHY.



Appeal, No. 214, March T., 1963, from order of Court of Common Pleas of Washington County, May T., 1959, No. 67, in case of Wilmer E. Dornon v. Charles E. McCarthy, trading and doing business as McCarthy Taxi Service, and Homer Wise. Order granting new trial vacated with direction to enter a judgment.

COUNSEL

Martin E. Geary, with him Frank C. Carroll, for appellant.

Charles G. Sweet, for appellees.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 412 Pa. Page 596]

OPINION BY MR. JUSTICE ROBERTS

Plaintiff obtained a jury verdict of $30,000 for personal injuries sustained by him in an automobile collision on December 3, 1958.*fn1 The opinion of the court below describes the circumstances of the accident as follows: "In reviewing the testimony it is undisputed that the plaintiff's automobile was bumped in the rear by the taxi operated by Homer Wise. No substantial damage was done to the plaintiff's automobile and no claim was made for damages. The testimony indicated only that the defendant's bumper had been pushed beneath the plaintiff's bumper leaving some scratches on the plaintiff's bumper and gasoline tank. The

[ 412 Pa. Page 597]

    bumper of the taxicab was bent, the right front parking light broken and a hole punched in the radiator grill."*fn2

Plaintiff claimed medical expenses of $1,484.21 and anticipated medical expenses of $450. Of this total of $1,934.21, the court below observed that $450 was "for [already received] therapy and manipulation, which his [plaintiff's] own physician did not recommend or approve." At the time of the accident, plaintiff was 59 years of age and was self-employed as a pottery salesman. During the five years prior to this accident, he had earned a total of $4,004.50.*fn3

Defendants moved for a new trial, primarily on the ground that the verdict was excessive,*fn4 and that it failed to give consideration to the verdict of $6,500 which plaintiff recovered in federal court for a substantially similar whiplash injury arising out of an earlier accident (November 1,1956).*fn5

[ 412 Pa. Page 598]

The court en banc noted that: "The verdict of the jury, in the sum of $30,000, under these circumstances, really shocks the conscience of the court," and directed that a new trial be had, unless plaintiff file a remittitur consenting to a reduction of the verdict to $13,000. Plaintiff ...


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