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THOMAS v. TOMAY. (01/21/64)

January 21, 1964

THOMAS, APPELLANT,
v.
TOMAY.



Appeals, Nos. 31, 32, 33 and 34, March T., 1961, from judgments of Court of Common Pleas of Fayette County, June T., 1953, Nos. 604 and 605, in cases of Richard C. Thomas, a minor, by George K. Thomas, his guardian, and George K. Thomas and Sarah Thomas, his wife, v. Mary Tomay, administratrix of estate of Frank Tomay, Jr., deceased; and Theodore Wade Frazee, and James Vernon Shultz, a minor, by Merrill M. Shultz, his guardian, and Merrill M. Shultz and Pearl Shultz, his wife, v. Same. Judgments reversed.

COUNSEL

Jacob E. Horewitz, for appellants.

David E. Cohen, with him Thomas A. Waggoner, for appellee.

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

Author: O'brien

[ 413 Pa. Page 271]

OPINION BY MR. JUSTICE O'BRIEN

These appeals are from judgments entered on jury verdicts by the Court of Common Pleas of Fayette County which refused to grant motions for new trials in trespass actions.

[ 413 Pa. Page 272]

The actions were instituted as a result of a collision of automobiles. The facts concerning this collision are fully set forth in Thomas v. Tomay, 394 Pa. 299, 147 A.2d 321 (1959). The facts are summarized as follows: On November 4, 1951, at about 1:45 A.M., a sedan, driven by Theodore Wade Frazee, of Friendsville, Maryland, while going south towards Uniontown from Pittsburgh on Highway Route No. 51, collided with a car driven by Frank Tomay, Jr.

The appellants, Richard C. Thomas, and James Vernon Shultz, were passengers in the Frazee automobile and were severely injured as a result of the collision. Tomay, Jr., the sole occupant of his car, died a few hours after the collision.

Five years more have elapsed since we said "At the outset, we are impelled to remark the great length of time that was allowed to elapse before these cases were brought to trial - a circumstance which is all the more regrettable since they must go back for retrial because of reversible error, harmful to the appellant, which the record discloses". Thomas v. Tomay, supra, at page 300. Once again, the cases must go back for retrial because of reversible error, harmful to the appellants.

There were three separate actions instituted. Mary Tomay, administratrix of the Estate of Frank Tomay, Jr., sued Theodore Wade Frazee under the wrongful death and survival statutes, to recover damages for decedent's death. The respective guardians of Richard C. Thomas, a minor, and James Vernon Shultz, a minor, brought separate suits against Mary Tomay, administratrix of the Estate of Frank Tomay, Jr., to recover damages for their personal injuries. In the ...


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