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DORNON v. MCCARTHY (01/04/66)

decided: January 4, 1966.

DORNON, APPELLANT,
v.
MCCARTHY



Appeal from order of Superior Court, April T., 1965, No. 51, affirming judgment 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.

COUNSEL

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

Samuel L. Rodgers, with him Rodgers and Roney, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Dissenting Opinion by Mr. Justice Cohen. Mr. Justice Jones and Mr. Justice O'Brien join in this dissent.

Author: Per Curiam

[ 420 Pa. Page 627]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Mr. Justice Cohen:

In the first Dornon v. McCarthy case, 412 Pa. 595, 195 A.2d 520 (1963), the plaintiff recovered a $30,000 jury verdict. Defendant moved for a new trial alleging that the verdict was excessive. The lower court agreed and ordered a new trial unless the plaintiff filed a remittitur consenting to a reduction of the verdict to $13,000. Plaintiff refused to file the remittitur and a new trial was granted. Plaintiff then appealed the order granting a new trial. This Court vacated the order

[ 420 Pa. Page 628]

    granting a new trial but instead of entering judgment on the verdict reduced the plaintiff's recovery to $13,000 under this Court's "statutory authority to amend or modify."

Justice Jones dissented on the ground that the jury trial provision of the State Constitution prohibited the reduction of the verdict without granting the plaintiff the alternative of a new trial and cited Smith v. Times Publishing Co., 178 Pa. 481, 36 Atl. 296 (1897), as conclusive authority that we do not have the constitutional right to deny the plaintiff a trial by jury and that this Court's power to amend or modify verdicts granted by the Act of 1891, P. L. 101, § 2, 12 P.S. § 1164, simply extends to our Court the ...


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